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Ganga Kuer Vs. Sukhjit Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1941All163
AppellantGanga Kuer
RespondentSukhjit Singh and ors.
Excerpt:
- - if the order of the court below is maintained, the claim of the appellant would be deemed to have been satisfied......fee was payable in accordance with article 11, schedule 2. tinder section 13 of the act, every claim decreed or undecreed against the landlord unless -made within the time and in the manner required by the act is deemed for all purposes and on all occasions to have been duly discharged. if the order of the court below is maintained, the claim of the appellant would be deemed to have been satisfied. if however the claim of the appellant had been within time, and had been adjudicated upon, the final order of the court would have had the force of a decree of a civil court of competent jurisdiction : vide section 14 of the act.2. the encumbered estates act has laid down a special procedure which has to be followed by all creditors who have any claims against the landlord who has made an.....
Judgment:

Mohammad Ismail, J.

1. This is an appeal from an order of the learned District Judge, Farrukhabad. The respondent, Sukhjit Singh and several other persons made an application under Section 4, Encumbered Estates Act, which was forwarded in due course to the Special Judge. The Special Judge in pursuance of the direction laid down in Section 9 of the Act, called upon all persons having claims in respect of private debts, both decreed and undecreed, against the person or the property of the landlord to present to the Special Judge within three months from the date of the publication of the notice, written statements of their claims. The appellant presented her claim after the expiry of time allowed by law. The written statement was therefore rejected. The appellant then preferred an appeal to the Court of the District Judge and preliminary objection was raised that the memorandum of appeal was not properly stamped. The learned District Judge upheld the objection and decided that an ad valorem court fee should have been paid. The appellant has now come up to this Court in appeal. It is argued by him that the order of the Court below is erroneous and that the order of the Special Judge declining to accept his written statement was only an order which did not have the force of a decree and therefore the court fee was payable in accordance with Article 11, Schedule 2. tinder Section 13 of the Act, every claim decreed or undecreed against the landlord unless -made within the time and in the manner required by the Act is deemed for all purposes and on all occasions to have been duly discharged. If the order of the Court below is maintained, the claim of the appellant would be deemed to have been satisfied. If however the claim of the appellant had been within time, and had been adjudicated upon, the final order of the Court would have had the force of a decree of a civil Court of competent jurisdiction : vide Section 14 of the Act.

2. The Encumbered Estates Act has laid down a special procedure which has to be followed by all creditors who have any claims against the landlord who has made an application under Section 4 and whose case has been forwarded to the Special Judge under Section 6. The rejection of a written statement beyond the time prescribed by the Act cannot have the force of a decree of a civil Court. It is only when an order is passed under Section 14 that the order becomes a decree. In my opinion, the creditor who is aggrieved by an order of the special Judge rejecting his written statement is entitled to appeal on payment of court-fee payable under Article 11, Schedule 2. Unless and until the Act specifically declares such an order to have the force of a decree there is no reason why a higher court-fee should be demanded. This view was taken by a Bench of the Oudh Court in Sukkhu v. Nand Bahadur Singh ('39) 26 A.I.R. 1939 Oudh 43. The decision of the Full Bench in Jagdish Pratap Bahadur Singh v. Udai Pratap Bahadur Singh : AIR1938All97 had no application to the facts of this case because in that case the special Judge had passed an order under Section 14 of the Act and the appeal was against that order which had the force of a decree. The attention of the learned District Judge was drawn to the Oudh case but he declined to follow it although he agreed that the facts of that case were similar to those of this case.

3. The analogy given by the learned District Judge appears to me to be inappropriate. If a claim is filed on the basis of a time-barred debt and an objection is taken about limitation and the trial Court frames a preliminary issue on the point of limitation and dismisses the suit holding the claim to be time barred, the appeal from the decision of the trial Court no doubt will have to bear full court fee stamp calculated on the valuation of the appeal. But in such a case the decision of the Court will be a decree. The orders of the Special Judge however have been given the force of a decree of a competent Court by virtue of the provisions of the Encumbered Estates Act. The order passed under Section 14 therefore is to be treated as a decree. There is no such provision however with regard to an order coming within the purview of Section 13 of the Act. In my opinion, the order of the Court below is erroneous. I accordingly hold that the court-fee paid on the memorandum of appeal is sufficient. For the reasons given above, I allow the appeal, set aside the order of the Court below and remand the appeal to the learned District Judge to be registered under its original number and decided according to law. No one appears on behalf of the respondents, I therefore allow no costs.


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