A decree passed on the basis of an unregistered award is not a nullity and cannot be questioned in execution proceedings.

( 1 ) THIS reference has been made by one of us (Newaskar J.) for resolving the conflict between the decisions in Lakhmichand v. Biharial, AIR, 1943 Nag 165 : ILR (1943) Nag 293 and Uttamchand Motilalji v. Wasudeo Deorao, AIR 1946 Nag 311 : ilr (1946) Nag 583.

( 2 ) THE material facts are that on the basis of an unregistered award a money decree for Rs. 900/- creating a charge on a house belonging to the respondent was passed in favour of the appellants. In execution proceedings of that decree, the house was sold and purchased by the decree-holders themselves. Thereupon, the respondent objected, to the sale on the ground that the decree itself was a nullity inasmush as the award had not been registered as required by Section 17 (1) (b) of the Indian Registration Act, 1908. This objection was) overruled by the executing Court. It, however, prevailed in appeal which the judgment-debtor) filed in the Court of the Additional District Judge, Dhar. The learned Additional District judge, following the decision in AIR 1946 Nag 311 : ILR (1946) Nag 583 (supra)held that the decree was a nullity and consequently the sale was also nullity.

( 3 ) THE decree-holders then filed a second appeal in this Court. During the course of the) hearing of the second appeal, the question arose as to which of the two decisions of the Nagpur High, Court the learned Single Judge had to follow in deciding the question whether the decree was or was not a nullity as the award had not been registered. The learned Single Judge, therefore, following the observations of the Supreme Court in Jaisri v. Rajdawan, AIR 1962 SC 83, adopted the course, of referring the matter to a Full Bench without taking upon himself the responsibility of deciding whether he should follow one Division Bench decision or the other.

( 4 ) THERE is no dispute that the award, which embodied a charge on the property of the respondent required registration under Section 17 (1) (b) of the Registration act and was not registered;, and that the award not having been registered could not under Section 49 of the Act be received as evidence in the proceedings for the filing of the award which led to the decree in favour of the appellants. The decree that was passed in the appellant's favour was thus in contravention of the provisions of the Registration Act. The short question, therefore, that arises for determination is whether the decree is a nullity because the Court passing it ignored the provisions of the Registration Act and an objection that the decree being a nullity is not executable could be taken in execution proceedings of that decree. On this point, in AIR 1943 Nag 165 : ILR 1943 Nag 293 (supra) a Division bench consisting of Grille C. J. and Vivian Bose J. , expressed the following view: -

"in our opinion, the same principle applies in respect of decrees consequent on an award as, does in the case of all other decrees. The executing Court cannot go behind it. It is true there are cases which hold that when the jurisdiction of the Court passing the decree is questioned the executing Court can consider the matter; also when it is contended that the decree is a complete nullity--and as a matter of fact that was the contention here. But in our opinion a decree given on the basis of an unregistered award is no more a nullity. than a decree obtained in an ordinary suit on art unregistered mortgage or sale deed which requires registration. "

( 5 ) WHEN a similar question arose in AIR 1946 Nag 311 : ILR (1946) Nag 583 (supra) another Division Bench consisting of Grille C. J. and Puranik J. expressed itself thus: -

"it is, however, strongly contended, on behalf of the appellant that, as the award has been superseded by a decree and the decree itself does not require registration, the execution of the decree cannot be refused, as an executing court is not entitled to question the validity of the decree. We agree that such is the general rule, but where it is patent that the decree is in fact pass

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