1. This is a creditor's appeal arising out of proceedings under the Encumbered Estates Act. It appears that three persons, Shaikh Shafiq Ahmad, Sheikh Habib Ahmad, sons, and Mt. Shakila Bibi, daughter of Sheikh Siddiq Ahmad, presented an application under Section 4, Encumbered Estates Act on 28th October 1936. Subsequently when the application was sent to the Special Judge they filed a written statement under Section 8 of the same Act on 16th October 1937. The Special Judge issued notice calling upon all persons having claims to present a written statement of their claims. Accordingly the present creditor appellant filed a written statement under Section 9, on 4th July 1988. In this he claimed that a decree for Rs. 6000 be awarded to him in respect of a mortgage deed dated 1st August 1930 executed by Siddiq Ahmad, father of the landlord applicants, to recover a sum of Rs. 3000. While the proceedings under the Encumbered Estates Act were pending the landlord applicants filed a suit under Section 38, Agriculturists' Relief Act, on 30th August 1940 for a declaration of the amount due on the said mortgage and the learned Munsif who decided the suit passed a declaratory decree that a sum of Rs. 8330 was due to the appellant on the mortgage on the date of the decree.
2. When in due course the case came up before the Special Judge for passing a decree under Section 14, Encumbered Estates Act he gave a decree for Rs. 4380 in respect of the aforesaid mortgage bond dated 1st August 1930. We find from the judgment of the learned Special Judge that the contention before him was whether the amount due on the mortgage should be calculated on the basis of the amount due on the date of the application under Section 4, Encumbered Estates Act i.e., 28th August 1986, or on the basis of the amount declared by the Munsif as due upto the 29th August 1940. The learned Special Judge, however, passed a decree in accordance with the decree passed by the Munsif. It is contended in appeal that the learned Special Judge had fallen into an error by adopting the decree passed by the Munsif under Section 33, Agriculturist's Relief Act as the basis of his calculations.
3. The matter has been set at rest by a Full Bench of this Court reported in Rukun Uddin v. Lachhmi Narain : AIR1945All113 in which it has been laid down that under the Encumbered Estates Act a decree should be passed on the principles laid down in Section 14 of that Act and that a decree passed under Section 33, Agriculturists' Relief Act could not be taken into, consideration. A reference has been made to Section 15 of the said Act, which lays down that in determining the amount due on the basis of a loan which has been the subject of a decree the Special Judge shall accept the findings of the Court which passed the decree except in so far as they are inconsistent with the provisions of Section 14. One of the provisions of Section 14 is that the provisions of the U.P. Agriculturists' Relief Act of 1934 shall not be applicable to proceedings under this Act. It has thus been pointed out that if a decree under Section 33, Agriculturists' Relief Act is adopted as the basis of calculations that will go against the aforesaid provision of the. Encumbered Estates Act. We have, therefore, no hesitation in holding that the learned Special Judge was wrong in passing a decree in accordance with the decree passed by the learned Munsif. He should have calculated the amount due under the decree with special reference to the conditions laid down in Section 14, Encumbered Estates Act.
4. The decree passed by the learned Special Judge is, therefore, set aside and the case is remanded for a fresh hearing. The learned Special Judge is directed to pass a proper decree in view of the observations made above. The appellant shall get his costs incurred in this Court, from the landlord applicants.