Skip to content


Krishna Gopal and anr. Vs. Ospal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberF.A.F.O. No. 266 of 1944
Judge
Reported inAIR1950All229
ActsDebt law; Uttar Pradesh Encumbered Estates Act, 1934 - Sections 47, 49 and 54; Code of Civil Procedure (CPC) - Sections 151 and 152 - Order 47; Uttar Pradesh Encumbered Estates Rules - Rule 3
AppellantKrishna Gopal and anr.
RespondentOspal Singh and ors.
Appellant AdvocateB.S. Darbari and ;G.N. Kunzru, Advs.
Respondent AdvocateR.B. Pandey, Adv.
DispositionAppeal dismissed
Excerpt:
- .....was the self-acquired property of ospal singh, one of the applicants. at the time when the learned special judge sent the list of properties to the collector from which the debts of the deceased sauji ram and mauji ram had to be paid, this note was overlooked and this item no. 4 was also included in the list with the result that the debts due from the de-ceased sauji ram and mauji ram could be realised from this item of property also. when ospal singh discovered this mistake, he moved the collector and ultimately went up to the board of revenue, but he was informed that he had to move the special judge for the correction of the list prepared by him. the learned special judge, acting under his inherent jurisdiction under sections 151 and 152, civil p. c., to correct a clerical error,.....
Judgment:

Malik, C.J.

1. This is an appeal against an order, dated 26th November 1943, passed by the learned Special Judge, first grade, Mainpuri. By reason of this appeal, the proceedings before the Collector have been held up for over five years.

2. Sauji Ram and Mauji Ram died leaving certain property. The heirs of the deceased made an application under Section 4, Encumbered Estates Act. Under Section 49, Encumbered Estates Act the debts due from the deceased were liable to be paid only out of the property left by them. In the list of properties mentioned in the written statement filed by the applicants under Section 8, U. P. Encumbered Estates Act item No. 4 was included in the list though it was specifically mentioned that it was the self-acquired property of Ospal Singh, one of the applicants. At the time when the learned Special Judge sent the list of properties to the Collector from which the debts of the deceased Sauji Ram and Mauji Ram had to be paid, this note was overlooked and this Item No. 4 was also included in the list with the result that the debts due from the de-ceased Sauji Ram and Mauji Ram could be realised from this item of property also. When Ospal Singh discovered this mistake, he moved the Collector and ultimately went up to the Board of Revenue, but he was informed that he had to move the Special Judge for the correction of the list prepared by him. The learned Special Judge, acting under his inherent jurisdiction under Sections 151 and 152, Civil P. C., to correct a clerical error, corrected the list and directed that Item No. 4 in the list of properties should be removed from the list sent to the Collector. It is against that order that this appeal has been filed. Mr. B. S. Darbari, learned counsel for the appellent, has relied on Section 47, U. P. Encumbered Estates Act and on Rule 3 framed under Section 54 of the Act. Section 47 runs as follows :

'Except as provided in Sections 45 and 46, no proceedings of the Collector or Special Judge under this Act shall be questioned in any Court.'

We are not prepared to accept the argument of Mr. Darbari that under the Encumbered Estates Act there is no right of review, and, however, gross the error may be and whether it is a clerical or arithmetical error or not, the Special Judge has no power to correct it. The Encumbered Estates Act was not intended to lay down a complete rule of procedure for the trial of cases before the Special Judge. The procedure prescribed under the Code of Civil Procedure is applicable where it is not inconsistent with any provision of the U. P. Encumbered Estate Act. There being no provision for review or for amendment of a clerical or arithmetical error or such other mistakes which the civil Court can correct under Sections 151 and 152 of the Code, we are of the opinion that the said provisions are applicable to the proceedings before the Special Judge. Section 47, U. P. Encumbered Estates Act was only intended to give a finality to the orders of the Special Judge and it only provides that orders passed by him or by the Collector shall not be questioned in any Court. That would obviously mean 'in any other Court,' and we do not see how this can debar the Special Judge from reviewing his own order where grounds exist under Order 47, Civil P. C. or under Sections 151 and 152 of the Code for the granting such of review. There is, therefore, no force in this contention.

3. Rule 3 made under Section 54, U. P. Encumbered Estates Act, runs as follows :

'If the applicant wishes the provisions of Section 49 to be applied, he shall state this fact in his application and shall also state whether or not he is the sole heir of the deceased debtor and, if he is not, the names and addresses of the heirs who have joined with him in the application and of those who have not so joined.'

In the case before us all the heirs and legal representatives of the deceased debtors had made an application in which the property included was mentioned as belonging to the deceased debtors except one item which was Item No. 4 about which it was said that it was inherited by Ospal Singh from his maternal grand-father and was his separate property. Section 49, U. P. Encumbered Estates Act, provides that if the debts are due from the deceased ancestor of a landlord-applicant, then such debts are recoverable only from the property of the deceased ancestor in the possession of the landlord-applicant and no other property belonging to the landlord-applicant can be proceeded against under the provisions of the Act, unless it is proved that the landlord-applicant has appropriated any property received from such ancestor or that he owes money to the estate of the deceased. No such suggestion was made in this case. Under the provisions of Section 49, Encumber-ed Estates Act, therefore, this Item No. 4 which belonged to Ospal Singh was not liable for the debts of the deceased ancestors and should have been excluded.

4. The objection raised by learned counsel for the appellant is that the applicant did not refer to the provisions of Section 49, U. P. Encumbered Estates Act in his written statement under Section 8 of the Act and did not specifically make a request that the provisions of Section 49 should be applied. Even though Section 49, U. P. Encumbered Estates Act was not specifically mentioned, the fact was stated that this was a separate-item of property belonging to one of the landlords-applicants and it did not belong to the deceased ancestors. The debts could, therefore, be liquidated under the provisions of the U. P. Encumbered Estates Act only from the rest of the property. In our view, there was sufficient compliance with the rule and it was not necessary to make specific reference to Section 49. It was obvious to anyone reading the application that the applicants wanted this property to be treated differently from the other properties which had belonged to the deceased debtors and had been inherited from them by the landlords-applicants, otherwise there was no reason why Ospal Singh should mention that item No. 4 was his personal property which he had inherited from his maternal grand-father and the deceased debtors had nothing to do with it.

5. The appeal has no force and is accordingly dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //