Iqbal Ahmad, Bajpai and Ismail, JJ.
1. This appeal arises out of a suit for a declaration that
the muafi properties in villages Pipla Jagir and Bijai Nagla,...are non-transferable under the Pensions Act (No. 23 of 1871) and are not attachable and saleable in execution of the decree in suit No. 706 of 1932 passed by the Court of the Munsif of Bijnor, which was not a competent Court, (for enforcement of the hypothecation lien.)
2. On the hearing of this appeal by the Division Bench, it appeared that certain questions of law of great importance were involved in the case and that the judicial decisions on those questions were not re-concilable. The Division Bench accordingly referred the case to a Full Bench and his Lordship the Chief Justice was pleased to constitute the present Full Bench of three Judges. The questions that have been partly argued before this Bench are firstly, whether in view of the provisions of Sections 4 to 6, Pensions Act there is an inherent want of jurisdiction in Civil Courts to entertain suits relating to pensions, and secondly, whether even after a decree for sale of pension has been passed by a Civil Court it is open to the judgment-debtor to question the right of the decree-holder to sell the pension in execution of the decree. On the former question there is a Division Bench ruling of this Court in Lakhmi Chand v. Madho Rao in which the general proposition has been laid down that all decrees passed by Civil Courts relating to pensions are without jurisdiction if the suit was entertained by the Civil Court without a certificate from the Collector. That case is an authority for the proposition that the doctrine of res judicata is inapplicable in such cases and, notwithstanding the decree passed by the Civil Court, it is open to the pension-holder to file a fresh suit questioning the validity of the decree on the ground that the subject-matter of the suit was pension and therefore the Civil Court had no jurisdiction to entertain the suit. The contrary view has been, if not expressly at least impliedly, expressed in a number of cases. It has been laid down in Chinnapa Reddi v. Srinivasa Rao Garu (1935) 22 AIR Mad 835 that
there is a distinction between an inherent want of jurisdiction in a Court and want of jurisdiction on grounds which have to be determined by the Court itself. The first makes a decree a nullity which can be ignored and need not be set aside. The second does not make the decree a nullity but only voidable; such a decree can be set aside by adopting the proper procedure, but cannot be collaterally impeached.
3. Two of the Judges constituting this Bench are at present disposed to differ from the case in Lakhmi Chand v. Madho Rao whereas one of the Judges at present is inclined to agree with that decision. If the question whether the decision of the Civil Court under the circumstances mentioned above operates as res judicata is decided by the present Bench the decision will be of two Judges to one. The result will be that three Judges of this Court will be of one opinion and two of the three Judges constituting this Bench will be of another opinion. This does not appear to be desirable and this anomaly can be avoided only by the constitution of a larger Bench. Further, for the decision of this appeal, it would be necessary either to agree or to disagree with the Full Bench decision of this Court in Katwari v. Sita Ram (1921) 8 AIR All 118. That case was decided by a Bench of three Judges. In the Full Bench case in Cantonment Board, Muttra v. Kishan Lal one of the Judges constituting the Bench expressed doubt as to the correctness of the decision of the Full Bench in Katwari v. Sita Ram (1921) 8 AIR All 118. Further, in the Division Bench ruling of this Court in Tahir Hasan v. Chander Sen . Rachhpal Singh J. also doubted the correctness of the Full Bench in Katwari v. Sita Ram (1921) 8 AIR All 118. One of the Judges constituting the present Bench also is not very happy about the last mentioned Full Bench decision. This also renders it desirable that the present case be decided by a larger Bench. We accordingly direct that the case be laid before the Hon'ble the Chief Justice with the request for constitution of a larger Bench.