1. This is a petition for leave to appeal to His Majesty in Council against an order of this Court passed in P. A. F. O. No. 211 of 1938, remanding the case to the Court below with the direction that the respondents, if they had not already filed written statements during the pendency of the appeal in this Court, should be given an opportunity to file their written statements within a time to be fixed by the Court and, if the written statements were filed, to proceed to adjudicate upon the rights of the parties in accordance with the provisions of the U. P. Encumbered Estates Act (25 of 1934). The petitioners are landlords within the meaning of that expression in the U. P. Encumbered Estates Act. They filed an application under Section 4 of the Act and that application was in due course forwarded to the civil Court in accordance with the provisions of Section 6 of the Act. The petitioners, in their written statements filed under Section 8 of the Act, did not disclose the mortgage debts of the respondents, nor did they mention the respondents at all as their creditors. The result was that no notice was issued to the respondents. It was in these circumstances that the respondents had failed to file a written statement of their claim. The petitioners had alleged in the trial Court that the property covered by the mortgage of the respondents no longer belonged to them as the petitioner Aidal Singh had transferred it to his wife. The learned special Judge had held that the alleged transfer was wholly fictitious and fraudulent and had been made with the intention of defeating and delaying creditors. This Court agreed with this finding of the learned Judge. It was also held that the conduct of the landlords, in not disclosing the names of the respondents as their creditors and the mortgage debts due to them, was fraudulent. The contention put forward on behalf of the landlords, who were the appellants in the appeal from order in this Court was that the trial Court should have held that the mortgage debts due to the respondents had been extinguished under Section 13 of the Act. In the circumstances mentioned above, the contention of the landlords appellants was not accepted and it was held, in concurrence with the Court below, that the debts of the respondents had not been, extinguished under Section 13 of the Act. Another contention raised by the appellants was that the procedure followed by the learned Special Judge and the actual decree passed by him were not in accordance with law. This contention was accepted and the appeal was allowed and the ease was remanded as stated above. The present application for leave to appeal to His Majesty in Council is by the landlords, in other words, the party whose appeal was allowed by this Court.
2. Apart from the question whether the petitioners are entitled to appeal to His Majesty in Council in view of the fact that the portion of the order of this Court which varied the order of the Court below was in favour of the petitioners and that the portion which was against the petitioners affirmed the decision of that Court, the learned Counsel for the respondents has contended that there is no 'final order' as required by Section 109, Civil P.C., and that, therefore, the petitioners have no right of appeal. It seems to us that this contention must, in view of the decision of their Lordships of the Privy Council in Abdul Rahman v. D.K. Cassim and Sons , be accepted. We may also refer to the Full Bench decision of this Court in Nuri Mian v. Ganges Sugar Works Ltd. ('16) 3 A.I.R. 1916 All. 243. There are also the decisions of this Court in Sajjad Ali Khan v. Ishaq Khan ('19) 6 A.I.R. 1919 All. 31, and in Iqbal Bahadur v. Mt. Ram Sree ('34) 21 A.I.R. 1934 All. 277. In our judgment, in the circumstances of this case, the point that the debt had been extinguished under Section 13 of the Act, was in the nature of a preliminary point akin, for example, to a plea of res judicata or of jurisdiction. The order of this Court may have decided an important, and even a vital, issue, but in the words of their Lord-ships of the Privy Council 'it left the suit alive, and provided for its trial in the ordinary way.'
3. We may also point out that the question which is sought to be raised by the appeal is now one of academic interest only. The U. P. Encumbered Estates Act, as it originally stood, allowed to creditors, by Section 9, a maximum period of five months for filing written statements of their claims. The Act has now been amended by Act 11 of 1939 and the provision now is that a Special Judge may receive such written statements if presented at any time before the date on which he sends the decree to the Collector under the provisions of Section 19 or before 30th November 1939, whichever is later. This amendment had been made before the appeal giving rise to this petition was heard by this Court and this Court was influenced by the change in the law when it passed the order of remand in this ease.
4. Learned Counsel for the petitioners has asked us to certify that this is 'otherwise a fit case' for appeal to His Majesty in Council within the meaning of Clause (c) of Section 109, Civil P.C. Apart from other considerations, in view of the change in the law mentioned above, the case cannot be held to be a fit one for appeal to His Majesty in Council. For the reasons given above we dismiss this application with cost.