Basil Scott, Kt., C.J.
1. In the year 1904 the plaintiff Chhaganlal Kishordas sued the respondents, who were minors represented by the Talukdari Settlement Officer as their guardian, for a decree upon a mortgage. In 1905 the Subordinate Judge Granted him a personal decree only for Rs. 2,360 and costs, hut the mortgage was held to be invalid under the provisions of the Gujarat Talukdars' Act. On the 27th of September 1905 the plaintiff filed an appeal. On the 21st November 1905 the Talukdari Settlement Officer took over the management of the estate under the Gujarat Talukdars' Act. On the 24th of the same month notice of the plaintiff's appeal was 24 to Se TaTukL Settlement Officer, and on the 28th of Cmbefthlt fficer issued a notification under Section 29Bof the Guiamt Talukdars' Act calling upon claimants to submit their
2. The Talukdari Settlement Officer relies upon the provisions Section 29B(3) that 'every claim not submitted in compliance with a notice shall, save in certain cases, be deemed for all purposes and on all occasions, whether during the continuance of the management or afterwards, to have been duly discharged ' That provision, however, is subject to an exception stated in the same section in these words :-' Unless in any suit or proceeding instituted by the claimant, or by any person claiming under him, in respect of any such claim, it is proved to the satisfaction of the Court that he was unable to comply with the notice published under Sub-section (i).'
3. We have now before us a proceeding in execution instituted by the claimant, and the question is whether he has proved to the satisfaction of the Court that he was unable to comply with the notice of the 28th December 1905 The learned Subordinate Judge was of opinion that the inability must be some physical inability on the part of the claimant. If that is so, it is difficult to understand why physical inability should be an excuse where a suit has been instituted and not an excuse where a suit has not been instituted. We are, therefore, of opinion that the word ' unable' is not confined to physical inability on the part of the claimant.
4. Now, at the time of the notice on the 28th December 1905 what was the claimant's position He had asserted that he was entitled to exercise the rights of a mortgagee in respect of certain property belonging to the defendants, who were represented by the Talukdari Settlement Officer, and whose property on the 21st of November passed under the management of that officer under the Gujarat Talukdars' Act. His claim had been negatived in the Subordinate Judge's Court, but he had appealed to the District Court and that appeal did not come on for hearing until some months after the notification under Section 29B. How then could he advance his real claim at the date of the notification The first Court had held that the claim, which he contended he was entitled to put forward, was an invalid claim. But he did not accept that decision. But if he had put forward his mortgage claim before the Talukdari Settlement Officer, that Officer would have at once met him by the decree in which he had only been granted a decree for money and costs. We think, therefore, that he was unable to put forward his real claim at the date of the notification, and at the date of the notice he was unable to comply with it within the meaning of Section 29B (3). The period allowed to the Talukdari Settlement Officer for appealing against the decree of the District Court enabled that Officer to keep the matter of the finality of the District Court's decree in dubio until after the expiration of six months from the date of the notification, and then when that period had elapsed he filed an appeal to the High Court. Under these circumstances we think that the inability of the claimant continued during that six months. we therefore, decide the case against the Talukdari Settlement Officer without taking into consideration the injustice of the contention that he has received no notice when he was actually a litigating party in the proceeding in which the claim was finally settled. If the claim had been duly discharged under Section 29B (3) it is difficult to understand why the Talukdari Settlement Officer took the trouble to appeal to the High Court. The plaintiff must have his costs throughout.