NEWASKAR J.

( 1. ) The only point raised in this second appeal which arises out of an execution proceedings is whether a decree passed on an award creating charge upon an immovable property is a nullity in case the award is not registered in accordance with the provisions of the Registration Act.

( 2. ) The question arose when the decree-holders in such a case sought to execute the decree based on the unregistered award and got the house of the judgment-debtor sold in execution and purchased it themselves. The judgment- debtor objected to the sale on the ground that the decree was a nullity as the award had not been registered. The executing Court overruled that contention and confirmed the auction sale. The judgment-debtor thereupon appealed to the learned Additional District Judge, Dhar, before whom two Division Bench decisions of the Nagpur High Court reported in Lakhmichand v. Biharilal(T943 NLJ 154=AIR 1943 Nag. 165=ILR 1943 Nag. 293) and Uttamchand Motilalji v. Wasudeo Deorao(1946 NLJ 317=AIR 1946 Nag. 311=ILR 1946 Nag. 583), were cited, considered that the latter of the two decisions ought to prevail, followed that decision and held that the decree was a nullity and consequently the sale. He consequently quashed the entire execution proceedings and dismissed the execution petition.

( 3. ) In this second appeal Mr. Sanghi for the appellants relied upon the decision of the Supreme Court reported in Jaisri v. Rajdewan(AIR 1962 S.C. 83), where their Lordships laid down the principle to be followed in case of conflict among decisions of Division Benches of the High Court.

( 4. ) In the earlier of the two cases it was held by Grille C. J. and Vivian Bose J. :-

"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 an unregistered mortgage or sale deed which requires registration."

( 5. ) In the latter case however Grille C.J. and Puranik J., observed in para. 5 of the report at page 312 :-

"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 passed without jurisdiction or is a nullity the executing Court is entitled to question the validity of the decree. It is said that the executing Court is not entitled to go into the necessarily complicated question whether an award in which a charge is created is registrable or not when a Court in which the award was filed has passed a decree in terms of it. When, however, there is a definite decision of a Full Bench of this Court, vide Mohd. Azizullah Khan v. Mohd. Noorullah Khan(1939 NLJ 375=AIR 1939 Nag. 233=ILR 1939 Nag. 607), that no decree can be passed on the basis of an award which requires registration it must follow that such a decree in respect of the charge is a nullity in that it was one which the Court was incompetent to pass; and in these circumstances it is immaterial whether the fact is deducible from the actual wording of the decree or not, since the absence of jurisdiction can be ascertained without an enquiry into facts, vide Laxman Madhoji v. Dhamori Co-operative Credit Society(AIR 1933 Nag. 211)."

( 6. ) It seems from this later pronouncement that reliance was sought to be placed upon the Full Bench decision of the same