1. ' B.Z. KAIKAUS, J.--Muhammad Aslam Siddiqui, the appellant before us secured an award in his favour from an arbitrator nominated by the Registrar of the. Co-operative Societies in respect of a- house situate in Pir Illahi Bakhsh Colony No,2 against respondent Hasina Begum. Tte dispute as to this house had been referred to the Registrar, Co-operative Housing Societies on the representation that the respondent as well as the appellant were members of Pir Illahi Bakhsh Co- operative Housing Society Ltd. The award said that the appellant was entitled to the possession of the house from the respondent. The appellant applied for execution of this award as a decree liecause under section 59 of the Sind Co-operative Societies Act the award has the force of a decree. The respondent objected to the execution of the award on the ground inter alia that she was not a member of the Pir Illahi Bakhsh Cooperative Housing Society and, therefore, the reference and the award against her were void. InaMullah, J. Held on affidavits that she was not a member of the Housing Society and, therefore, the award could not be executed as a decree. In this appeal the decree-holder challenges that order on three grounds (1) that an executing Court cannot go behind the 'decree and is not even entitled to determine whether it was passed with jurisdiction, (2) that there was a, decision by the arbitrator as to the respondent being a member of the Pir Illahi Bakhsh Co-operative Housing Society Ltd, which decision was binding on the civil Court, and (3) that the respondent is' in fact a member of the Pir Illahi Bakhsh Co-operative Housing Society and the finding of fact on this point is not justifiable at all.
2. ' In the first point there is obviously little force and in fact learned counsel for the appellant himself is not prepared to take the proposition which he puts forward to its logical limits. If this proposition was correct, then, even if there was a decree against a dead man the executing Court would have to execute it. But learned counsel accepts that the executing Court should go into 'question whether the judgment debtor was alive on the date when the decree was passed against him.
3. Again when I questioned learned counsel as to whether a decree for Rs, 1 lac which purports to be passed by a Munsif whose jurisdiction could not exceed Rs, 500 is to be executed by an executing Court he replied in the negative. He has quoted a number of authorities to which I find it unnecessary to refer. Some of them are cases of lack of territorial jurisdiction. It should be remembered that the lack of territorial jurisdiction is, truly speaking, not a question of jurisdiction at all (unless it be a case of foreign country) and this should be apparent from section 21 of the C.P.C.
4. Which provides that even if a suit has been tried by a Court which had not territorial jurisdiction to try it the decree cannot be set aside unless prejudice is proved. In some of the judgments relied upon the words "without jurisdiction" are used and it is said that an executing Court cannot enquire into whether the decree was passed without jurisdiction. I can only say that here the learned Judges are using the words "without jurisdiction" in a special sense and not in their ordinary sense.
5. Ordinarily when we say that an order or decree is without jurisdiction we mean that it is void and that it has no existence in the eye of law. But sometimes these words are used to denote what is called a qualified lack of jurisdiction, that is, a defect which can be made the basis of an attack in a continuation of the same proceedings by way of appeal, review or revision, but cannot be made the subject of a collateral attack. To use these words with such a meaning leads to confusion. It is this confusion that has enabled learned counsel for the appellant to put forward an argument that the executing Court cannot enquire into the jurisdiction of the Court which passed the decree. All that was really held in the judgments on which the learned counsel for the appellant relied was that, if there be a defect in a decree of a kind which can be made the subject of an enquiry before an appellate or a revisional Court, it is not for the Court executing the decree to enquire into it. With this proposition I have no quarrel, though I do object to the words in which it has been put. I do not understand how any decree-holder can contend that the executing Court cannot go into the question whether the decree which is before it, is a decree in the eyes, of law at all. That is a question into which it is not only entitled to go, but into which it must go before it executes the decree. If what purports to b a decree is not a decree at all, it cannot be executed. The executing Court has to see, firstly, whether the Court which has passed th decree was duly constituted; secondly, whether the matter which it has determined was one which it' was entitled in law to determine; and thirdly, whether the decree passed is of a kind which it could legally pass at all.
6. In the present case, we are dealing not even with a decree but with an award, though it has, under the law, the force of a decree. We are here dealing with the determination by a special Tribunal. We have to see, firstly, whether the Tribunal was properly constituted, and secondly, whether the matter which it determined was within it power. If the judgment-debtor raised an objection that there was no reference to the arbitrator by the Registrar at all, or that the matte referred to did not relate to the business of the society (this being the only matter which could be referred) I do not see how it can be urged that these points cannot be raised.
7. ' We will deal now with the second contention raised, namely, that there was a decision. By the arbitrator as to the respondent being a member of the Pir Illahi Bux Housing Society, Ltd., and that decision was binding on the civil Court. Reliance is placed by learned counsel for the appellant on sections 54 and 57 of the Sind Co-operative Societies Act, under which the award was given. These sections are reproduced herebelow : "54. Arbitration.
8. ' If any dispute touching the business of a society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises--
(a) between members or past members of the society or persons claiming through a member or past member, or
(b) between members or past members or persons so claiming and any past or present officer, agent or servant of the society, or
(c) between the society or its committee, and any past or present member of the society, or
(d) between the society or its committee, and any past or present officer, agent or servant of the society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society, or
(e) between a financing bank authorised under subsection (1) of section 34 and a person who is not a member of a society; ' it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.
9. ' A dispute shall include the question whether a person is or was a member of a society and also claims by a society for debts or demands due to it from a member, past member or non-member or the heirs or assets of a past member or non-member whether such debts or demands be admitted or not: ' Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending proceedings the Registrar shall take action as laid down in paragraph (1) of this section."
10. "57. Finality of awards in certain orders.
11. ' The awards of arbitrators or a decision by the Registrar or his nominee under section 54 or section 54-A or an order passed in appeal by the Registrar under section 56 shall, subject to the provision of sections 64 and 64-A, be final and conclusive and shall not be liable to be called in question in any civil or revenue Court."
12. ' It will be observed that a question as to whether a person is or is not a member of the Co- operative Society is also a dispute within the meaning of section 54. In order to determine whether there is in the present case an award by the arbitrator which is a bar to the decision of this question, it is necessary to reproduce the award and the relevant portion of the reasons for it. The matter which was referred to the arbitrator by the Registrar, was only as to whether it was the appellant or the respondent who was entitled to the house in dispute. This is clear from the award itself, which runs:- "Whereas in pursuance of an order dated the 28-1-1953, made by the Joint Registrar, Co-operative Societies, Karachi, under section 54 of the Bombay Co-operative Societies Act VII of 1925, a dispute between the above parties touching the _above claim has beten referred to me for determination; ' Now I have summoned the parties (defendant failed to attend the arbitration proceedings) and duly considered the matter referred to me do hereby order for reasons separately recorded that the defendant Mst. Hasina Begum to vacate the quarter No, 1036 situated in the Pir Illahi Bux Co- operative Housing Society Ltd., Karachi and hand over the possession of the quarter mentioned above to Mr. Muhammad Aslam Siddique within two months of the communication of this Award, otherwise the plaintiff shall be entitled to get the possession of the said quarter at the cost of the defendant.
13. ' The plaintiff shall pay Rs,50 as Arbitration Fee and Rs, 10/15 as clercial charges."
14. 'In the reasons for the award, there occurs the following passage:-- "(1) The defendant's argument that she cannot be made a party of the arbitration proceedings on the ground that she is not a member of the Society is not correct. She has paid Rs, 10 towards admission fee to the Society and as such for all purposes touching the business of the society she is responsible to it, although she may not be a Share Holder. Further, section 54 of the Bombay Co- operative Societies Act VII of 1925 (provides) that dispute shall include of members as well as of non-members. She could, therefore, be made a party to the said dispute."
15. There are a number of reasons why the contention of learned counsel for the appellant is not correct. The first is that in order that a determination by the arbitrator should be binding on a civil Court, there should be a reference of the dispute to the Registrar, and then the nomination of an arbitrator by the Registrar. This is a condition precedent for the making of an award in accordance with section I 54. Here, it is apparent that the reference was only as to the title 1) the house in dispute; that is why the award itself is confined to a decision as to title. Learned counsel for the appellant contends that if the Registrar refers a particular dispute to an arbitrator on the assumption that the parties are members and one of the parties raises the question that he is not a member, then the arbitrator is entitled to, go into the question, and his decision on this matter will be binding as if there was an award. We are not inclined to agree with this contention. The jurisdiction that is conferred on an arbitrator under section 54 for deciding a question as to whether a person is a member or not is exceptional in fact, a very exceptional jurisdiction. It is rarely that a Tribunal is constituted the Judge of its own jurisdiction. By giving E authority to the arbitrator to decide as to who is a member, a vast power has been granted to him to make any person subject to hi jurisdiction. Being an exceptional jurisdiction it has to be strict! Interpreted and the requirements for its exercise must be strictly complied with. The arbitrator derives his jurisdiction from the reference to him by the Registrar only. He can decide the dispute which is referred t him, and no more. If on a reference to the arbitrator an objection is raised by a party as to jurisdiction because one of the parties is not member, the arbitrator may properly refuse to decide this matter on the ground that that was not referred to him and that the reference assumes that parties are members. If it be intended that he should give a binding decision on this point, the party concerned should again approach the Registrar and get a reference from him to the arbitrator for deciding the question as to whether the person concerne is or is not a member.
16. But, in any case, it is only an award that is binding under section 57. The decision of any preliminary question relating to procedure or jurisdiction which the arbitrator decides is not a part of the award, and therefore, has no binding force.
17. 'This is not all. We have reproduced that part of the reasons for the award' which is said to contain the decision of the arbitrator on this point. It does not disclose a clear finding. The first sentence refers only to the incorrectness of the argument, and the argument may be incorrect because of what is said later by the arbitrator, i.e. That a party to the reference need not be a member. The second sentence only fixes some kind of responsibility on the respondent and does not say that she is a member. It may be explained here that according to the case of the appellant, the respondent had applied for admission as a member of the Pir lllahi Bux Housing Society Ltd. And had paid the fee of Rs, 10 which is necessary for such an application and had been allotted a plot but she had not paid the money needed for acquiring a share. The arbitrator appears to have taken the view, which is admittedly incorrect, that there could be an arbitration even between a member and a non-member, and it appears that he had not at all finally determined the question as to whether the respondent was a member.
18. We come now to the question whether the respondent is in fact a member of the Society. This matter was decided by the learned Single Judge on affidavits. We have gone through the record carefully and are of the opinion and this is not a matter which can be satisfactorily decided on affidavits and that evidence should be allowed. We do not say anything further in order that we may prejudice the case of either party.
19. We accept this appeal and remand this case for trial to Mr. S.H. Kazmi, 1st Class Sub-Judge, Karachi. As cases below the value/ of Rs, 25,000 are not now to be tried in the High Court, the case has to be sent to some Sub-Judge, and parties are agreed that it should go to Mr. Kazmi. Parties will appear before Mr. Kazmi on 2nd December, 1958. There is no order as to costs.