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Second Appeal No. 116 of 1966, decided on 21st November 1967.

S. S(1), (4)(b)‑Failure of one party to nominate his representative- Chairman duty bound in. terms of S. S(4)(b) to certify failure of conciliation ‑ Conciliation Court consisting of two repre sentatives of one of the parties and the Chairman, without any 4‑epresentative of other party‑Court not properly constituted as envisaged under S. S(1)‑Decree passed by such Court offends against statutory requirement of S. 5(4)(0).

Mst. Said Khanum v. Abdul Jabbar P L D 1965 Pesh. 149 and Aye6 Ali and others v. Chairman, Union Committee Concilia tion Court and others P L D 1966 Dacca 125 rel.

S. 47‑Execution of decree or order‑Objection as to executability of decree‑Execu tion Court competent to go into such question of defect patent on face of decree or order‑Decree passed by Conciliation Court not properly constituted ‑ Held, without jurisdiction ‑ Order of executing Court dismissing execution application, in circumstances, upheld by High Court‑Conciliation Courts Ordinance (XLIV of 1961), S. S(1).

Ayeb Ali and others v. Chairman, Union Committee Concilia tion Court and others P L D 1966 Dacca 125 and Islamic Republic of Pakistan v. Muhammad Saeed P L D 1961 S C 192 rel.

M. G. Dastgir for Appellant.

Masood Hussain Khan for Respondent.

Date of hearing: 21st November 1967.

This is a second appeal against the judgment of the learned District Judge, Hyderabad dated the 9th of March 1966 in which be had set aside the order dated the 25th of October 1965, passed by the Civil Judge, Tando Allah Yar, as executing Court dismissing the execution applica tion on the ground that the decree sought to be executed was without jurisdiction.

2. That facts giving rise to the present appeal are as given below: The appellant was the husband of the respondent. Their marriage had ended in divorce. The respondent moved. the Chairman., Union Committee C', Rahimyar Khan, claiming a sum of Rs. 10,000 against the appellant as dower money. The appellant was served and it is alleged that he had consented to the matter being adjudicated upon by the Conciliation Court: tit is also alleged that he had admitted the amount of dower money and had pleaded for monthly instalments in the sum of Rs. 150. The case was adjourned to the 8th of May 1964, for. the parties to nominate their representatives on the Conciliation Court and on that day the respondent appeared and nominated two representatives on her behalf. The appellant, however, did not appear before the Chairman on that day nor did he give any indication regarding the representatives to be, nominated by him. 'The Chairman then awarded a decree against the appellant in the sum of Rs. 10,000. The respondent took up execution proceedings against the appellant in the Civil Court at Rahimyar Khan. On this the appellant moved the Senior Civil Judge, Rahimyar Khan in revision against the impugned decree. The revision petition was rejected. Later on, the decree was transferred to the Civil Court at Tando Allah Yar for execution. The said Court on objection being raised by the appellant, dismissed the execution application holding that the decree was a nullity. The respondent went in appeal to the District Judge, Hyderabad, who, vide his judgment dated the 9th of September 1963, set aside the order of the executing Court and remanded the case for proceeding with the execution of the decree. The appellant has come in second appeal.

3. The principal ground taken up in this appeal is that the appellant had not nominated his representatives for the constitution of the Conciliation Court under subsection (1) of section 5 of the Conciliation Courts Ordinance, 1961 and that the Chairman was bound in terms of clause (b) of subsection (4) .of section 5 of the Ordinance to certify the failure of conciliation. The appellant's contention is that since the Conciliation Court was to consist of four representatives, two of each party, and the Chairman, there was no Conciliation Court actually constituted without the nominees of the appellant and hence the question of the Conciliation Court passing any decree against him did not arise. The Chairman, according to the appellant, had also failed in. his statutory duty to report failure of the Conciliation of this case and since there was no Conciliation Court properly constituted and since no decree could be passed by the Concilia tion Court consisting of three instead of five persons, the decree was a nullity on the very face of it.

4. I have seen the orders passed in this case by the learned Senior Civil Judge. Rahimyar Khan in revision, the orders passed the Executing Court, Tando Allah Yar and those passed by the learned District Judge, Hyderabad. It is unfortunate that the present defect in the proceedings under the Conciliation Courts Ordinance had never been adverted to in any of the aforementioned judicial proceedings. A copy of the order passed by the Chairman of the Conciliation Court dated the 8th of May 1964, is at page 21 and its English translation is at page 23. It is clear from the order itself that the Chairman had, on the failure of the appellant to participate in the proceedings before him or to nominate his representatives, proceeded to pass this order, which is now being treated as a decree, instead of complying with the statutory requirement of clause (b) of subsection (4) of section 5 of the Ordinance. The learned counsel has relied on the authorities reported as Mst. Said Khanum v. Abdul Jabbar (P L D 1965 Pesh. 149) and Ayab Ali and others v. Chairman, Union Committee Conciliation Court and others (P L D 1966 Dacca 125). Both these authorities have laid down in very clear terms that where one of the parties to a dispute before the Chairman of the Union Council fails to nominate his representatives the Chairman has no power to proceed with the case but has to certify the failure of conciliation and that the decree, etc. if any, awarded by the Chairman is a nullity. The learned counsel for the appellant has also relied on Islamic Republic of Pakistan v. Muhammad' Saeed (P L D 1961 S C 192) and The Sind Provincial Co‑operative Wholesale Society Ltd. v. Abdu Weavers Co‑operative Society and others (P L D 1960 Kar. 946,). Both these authorities lay down that where the defect in the decree is patent on the face of it, the Executing Court can go into the question of the executability of the decree. The Supreme Court authority referred to above has been mentioned in the judgment of the learned District Judge, Hyderabad, but unfortunately the defects that have come to light in the present proceedings, had not been urged before him. The result, therefore, is that the Chairman had, on the failure of the appellant to nominate his representatives, merely to certify the failure of conciliation under subsection. (4) (b) of section 5 of the Ordinance and the decree in the sum of Rs. 10,000 awarded by him against the appellant is a nullity as there was no Court properly constituted under section 5(1) of the Ordinance and the decree also offends against the statutory requirement of section 5(4) (b) ibid. Since the defect is patent on the face of the order passed by the Chairman, the Executing Court below was competent to take notice of it. In the circumstances, this appeal is accepted, the judgment of the learned District Judge, Hyderabad, dated the 9th of March 1966, is set aside and the order of the Civil Judge, Tando Allah Yar, dated the 25th of October 1965, dismissing the execution application on the ground that the decree was a nullity, is restored. Since the point on which this appeal has succeeded had not been taken in the Courts below, I leave the parties to bear their own costs.

A. E. Appeal accepted.

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