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Suryapal Singh Creditor No. 5 Vs. Kr. Nahar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberFirst Appeal No. 293 of 1944
Judge
Reported inAIR1950All311
ActsDebt Law; Uttar Pradesh Encumbered Estates Act, 1934 - Sections 16; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 33
AppellantSuryapal Singh Creditor No. 5
RespondentKr. Nahar Singh and ors.
Appellant AdvocateD. Sanyal, Adv.
Respondent AdvocateJ.N. Chaterji, ; Satya Narain Agarwala, ; Surendra Narain Agarwala, ; B. Dayal, ; K.H. Agarwala and ; G. Agarwala, Advs.
DispositionAppeal dismissed
Excerpt:
- .....6th september 1943. the appeal was filed two days beyond time on 8th september 1943, but the other secured creditors were not impleaded as parties to this appeal. the delay in filing the appeal was condoned on 28th july 1944. it was not till 9th december 1944 that an application purporting to be an application under order l, rule 10, order 41, rule 33, and section 151, civil p. c., was filed to implead the satya narain bank limited, babu lal, risal singh and others and nemi chand. in the affidavit filed in support of the application no facts are given which would justify the extension of the period of limitation for filing an appeal against the persons whose names were attempted to be added to the memorandum of appeal. learned counsel had urged that, as the names of these persons were.....
Judgment:

Malik, C.J.

1. This appeal hag been filed by creditor No. 5 of the landlords applicants, who was classed as a secured creditor in class III. Along with him certain other creditors who had mortgages in their favour were also placed in the same class. The decision of the learned Special Judge is dated 30th May 1943. The limitation for filing an appeal against that decision expired on 6th September 1943. The appeal was filed two days beyond time on 8th September 1943, but the other secured creditors were not impleaded as parties to this appeal. The delay in filing the appeal was condoned on 28th July 1944. It was not till 9th December 1944 that an application purporting to be an application under Order l, Rule 10, Order 41, Rule 33, and Section 151, Civil P. C., was filed to implead the Satya Narain Bank Limited, Babu Lal, Risal Singh and others and Nemi Chand. In the affidavit filed in support of the application no facts are given which would justify the extension of the period of limitation for filing an appeal against the persons whose names were attempted to be added to the Memorandum of appeal. Learned counsel had urged that, as the names of these persons were not included in the decree and the appeal is only against the decree of the lower Court, the appellant could implead only those persons whose names had been included in the decree and as against others, who may be necessary parties, the appellant can only apply under Order 1, Rule 10, or Section 151, Civil P. C. for their being impleaded under the orders of this Court. The question whether creditors whose names were not included in the decree passed by the lower Court were necessary parties to the appeal and whether they should be impleaded after the period of limitation for filing an appeal had expired came up for consideration before a Full Bench of this Court in Benares Bank Ltd,, v. Bhagwan Das, 1946 A. L. J. 402 : (A. I. R. (34) 1947 ALL. 18 F. B.). The Bench decided that, even though such creditors might not be parties to the decree, they were necessary parties to the appeal, and was further of the opinion that such creditors who were sought to be impleaded at a later date had acquired a valuable right by lapse of time and could not, therefore, be made parties to the appeal. It is not necessary for us to discuss this question further as, even on the merits, the appeal has no force.

2. The appellant claims that he should be given a special priority as against the other secured creditors who have been placed in class III. The consistent view of this Court is against this submission. The latest decisions are Makhan Lal v. Keshabdeo : AIR1948All133 and Kishori Lal v. Haji Mohammad Nazir : [1960]39ITR265(All) . Some reliance is placed by learned counsel on the observations made by a Bench of this Court in Sant Prasad v. Dallu, 1947 A. L. J. 176, but it was not intended to be laid down that the Courts were bound to settle the priority inter se between the secured creditors placed in class in. It is only in some very special case that the Bench thought that it might be possible to do so. All creditors, whether secured or unsecured, get simple money decrees under the U. P. Encumbered Estates Act and the secured creditors are placed in a special class and, without consideration being paid to the amount of property included in the mortgages in their favour, they are entitled to get their money in preference to unsecured creditors from the entire property belonging to the landlords applicants. So even if the first mortgagee has only one item of property included in his mortgage the amount due to him has to be paid in preference to the unsecured creditors out of the entire property of the landlord applicants. In these circumstances, it is not possible to determine the priority between secured creditors inter se on any recognised principle. The only possible case, that we can conceive of, where it might be possible to determine priority--we express no final opinion on this point--is when the entire property belonging to the landlord applicants is subject to a number of mortgages. In such a case it might be possible to determine the priority in accordance with the date of the execution of the mortgages.

3. The appeal has no force and is dismissed with coats.

4. The record may be sent down to the lower Court by a very early date, so that the proceedings may not be further delayed.


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