1. This appeal arises out of an order passed by a Special Judge of the First Grade in a proceeding under the Encumbered Estates Act. The appellant, Rameshvar Dayal, is a landlord who has made an application under Section 4, Encumbered Estates Act. It is admitted that in that application he mentioned the name of the respondent Sheo Narain in the list of his creditors. It is further admitted that when the appellant was asked by the Court to furnish further particulars as required by Section 8(d), Encumbered Estates Act, he gave the name and address of the respondent Sheo Narain amongst his creditors. A notice was then published in the Gazette as required by Section 9 of the Act. A copy of that notice was also ordered by the Court to be sent to the respondent Sheo Narain as required by Section 9(2) of the Act. Attempts were made to effect personal service of that copy of the notice on the respondent but they failed. The appellant then asked the Court to make a final attempt by sending the copy of the notice to the respondent by registered post and also by having service effected upon him through the District Judge. The process-server who was entrusted with the service of notice reported that the respondent refused to take delivery and thereupon the District Judge held the service to be sufficient and made a report accordingly to the Special Judge. The other notice sent by registered post was returned unserved. The report of the process-server in which it was alleged that the respondent refused to take delivery was made on 29th July 1937. The notice in the Gazette was published on 5th June 1937. On 7th December 1937, the respondent appeared before the Special Judge and put in a written statement. Objection was taken on behalf of the appellant on the ground that a period of five months having expired since the publication of the notice in the Gazette the respondent was not entitled to put in a written statement at all and his claim must be deemed under the law to have been discharged. The learned Special Judge has repelled this objection and has allowed the respondent to put in a written statement of his claim, hence the present appeal.
2. The simple argument of the appellant is that under the law as it stands the Special Judge has no power to accept a written (statement by a creditor if it is presented more than live months after the date of the publication of notice in the Gazette. Reliance is placed in support of this contention on the mandatory provision contained in Section 9(3), Encumbered Estates Act, which runs as follows:
The written statement must be presented within the period specified in the notice unless the claimant satisfies the Special Judge that he had sufficient cause for not presenting it within such period in which case the Special Judge may receive the statement if presented within a further period of two months.
3. The language of this sub-section is perfectly plain and undoubtedly supports the appellant's contention. The learned Special Judge has, however, held that the notice in the Gazette which is published in accordance with Clause (1) of Section 9 of the Act is meant only for these creditors whose names have not been mentioned in the application made by a landlord under Section 4 of the Act. He argues that a creditor whose name is mentioned in the application can appear before the Special Judge at any time and can file a written statement. 1 need only say that this is obviously a wrong view of the law. The notice prescribed by Clause (1) of Section 9 of the Act is a general notice given to all persons having claims in respect of private debts, both decreed and undecreed, against the person or the property of the landlord by or on whose behalf the application has been made under Section 4 of the Act. There is absolutely no warrant for holding that this notice in such general terms is meant only for the creditors who have not been named in the application under Section 4 of the Act. It has also to be borne in mind and this is a point which is apt to be overlooked that the Act does not contemplate any notice being issued to the creditors whose names have been mentioned in the application under Section 4. It is only a copy of the notice published in the Gazette which has got to be sent to such creditors by registered post as an additional precaution. The notice published in the Gazette in accordance with Clause 1 of Section 9 is clearly meant for all creditors whether their names appear in the application under Section 4 or not. The learned Counsel for the respondent argued that the provision in Clause (2) of Section 9 that a copy of the notice shall be sent by registered post to each of the creditors whose-names and addresses are mentioned in the application necessarily implies that such, copies must be proved to have been personally served upon the creditors against whom the provisions of Sub-section (3) of Section 9 are sought to be enforced. In answer to this argument it is enough to refer to the plain language of Clause (3) of Section 9 which refers to the notice published in the Gazette and not to the copy of the notice sent by registered post to the creditors. In my view of the law as contained in Clause (3) of Section 9, I think it is perfectly clear that a creditor can have only three months time from the date of the publication of the notice for filing his written statement and can further be allowed to present his written statement within a period of two months immediately after the expiry of the former period if he is able to satisfy the Special Judge that he had sufficient cause for not presenting it within such period. It is not within the power of the Special Judge to admit or receive any written statement which is filed more than five months after the date of the publication of the notice in the Gazette as required by Clause (1) of Section 9. This view finds support from a decision of a Division Bench of this Court in Ashraf v. Saith Mal : AIR1938All47 The facts of that case are no doubt slightly different inasmuch as a notice was in that case served upon the creditor but that does not in my opinion affect the interpretation of Clause (3) of Section 9 of the Act. The result therefore is that I allow this appeal and set aside the order passed by the learned Special Judge. The appellant shall have his costs from the respondent.