1. This second appeal from order raises a question of law, which does not appear to be covered by any authority.
2. Bhola Singh and his son, Hakim Singh, having mortgaged certain properties, sold the equity of redemption of a moiety share in one of the items of property to one Subedar Singh. Mohan Lal obtained a decree on the basis of the mortgage in the year 1932 against Bhola Singh and his son, Hakim Singh, without impleading Subedar Singh as a defendant. Bhola Singh and his two sons applied for relief under the Encumbered Estates Act in the year 1936, and Mohan Lal, having set up a claim in those proceedings, under the mortgage decree, obtained a fresh decree under the Act in the year 1939. Subedar Singh sold the property purchased by him from Bhola Singh to Gokaran Singh in the year 1940. In 1942 Gokaran Singh filed an objection under S. 11, claiming that the property purchased by him was not liable for the payment of the debts of the applicants under the Encumbered Estates Act. His claim was allowed in the year 1944. Mohan Lal then applied under Section 9(5), Encum-bered Estates Act, praying that the debt due to him be apportioned between the landlord applicants and Gokaran Singh, and that the liability Gokaran Singh be determined. The learned Special Judge allowed this application and determined amount payable by Gokaran Singh. The lower appellate Court set aside the order of the learned Special Judge and, holding that Section 9 did not apply to a case such as the present case, dismissed Mohan Lal's application. Mohan Lal has filed this appeal against the aforesaid order of the lower appellate Court.
3. Learned counsel for the appellants contends that this is a case where there were several joint-debtors, some of whom had applied for relief under the Act, and others had not, and, therefore, the liability should have been apportioned.
4. Learned counsel for the respondents con-tends that Gokaran Singh was not a joint-debtor with the landlord-applicants within the meaning of the Act, and, therefore, the liability could not be determined under S. 9 of the Act.
5. The question for consideration is whether Gokaran Singh can be described to be a debtor within the meaning of the Act. In ordinary parlance he would be considered to be a debtor, but the question that has to be determined, is whether he is a debtor also within the meaning of the Act. This word has not been defined in the Act. Although 'debt' has been defined in Section 2(8) to include a pecuniary liability except a liability for unliquidated damages, the contention of the learned counsel for the respondents is that this is the property in the hands of Gokaran Singh, which is under a liability created by the mortgage, and that Gokaran Singh himself is not subject to any pecuniary liability. He cannot, therefore, be held to be subject to a debt and consequently cannot be held to be a debtor. Section 2 does not make it very clear whether a person whose property is subject to some pecuniary liability is to be regarded or not to be regarded to be a debtor. Section 4 of the Act, however, is helpful in solving this problem. This section enables a landlord to apply for the benefits of the Act, and divides landlords into two categories, the first category being of landlords who are subject to private debts, the other category being of landlords, whose property is encumbered with private debts. A person, who is himself subject to a debt is certainly a debtor. If it was intended by the Act that a person whose property is encumbered with debts, but who is not personally liable to pay such debts, should also be regarded to be a person subject to a debt and thus a debtor within the meaning of the Act, there was no object in making a distinction between the two classes of persons mentioned in the section. It would have been enough to say, 'a landlord who is subject to a debt' or a debtor landlord.
6. Having regard to the provisions of the Act, I am of opinion that a person whose property is subject fo an encumbrance is not a debtor within the meaning of Section 9 of the Act.
7. In my opinion, therefore, the order of the lower appellate Court is perfectly correct. Their appeal is, therefore, dismissed with costs.
8. Mr. Baleshwari Prasad, learned counsel for the appellants, prays for permission to file a Letters Patent appeal. The permission prayed for is granted.