1. An application under the United Provinces Encumbered Estates Act was filed on 21st October 1936, by Lutuf Ali and the applicant Khurshed Ali. On 20th September 1937, Ram Saran Das, opposite party No. 1, objected to the maintainability of the application by Khurshed Ali and the Board of Revenue held on 13th November 1941, that Khurshed Ali had no right to apply under the Encumbered Estates Act. The result, therefore, was that Khurshed Ali's name was removed and Lutuf Ali remained the sole landlord applicant.
2. On 28th July 1924, Lutuf Ali had executed a mortgage deed in favour of Narain Dass for a sum of Rs. 21,250 and had mortgaged his share in a village known as Shadipur Jhadol. Lutuf Ali sold a half share in the equity of redemption to Shib Charan and others for Rs. 24,000 on 18th July 1925, and left a part of the sale consideration or payment to the mortgagee. The payment was not, however, made and ultimately on Slat December 1934, Shib Charan and others returned or re-conveyed a half of what they had purchased, i. e., one-fourth share in the property, to Lutuf Ali and Khurshed Ali. This transfer, we are informed, was without any cash consideration. On 26th September 1928, the other half share in the equity of redemption that had remained with Lutuf Ali was sold in execution of a simple money decree for Rs. 1,600 and was purchased by the decree-holder, Shri Ram. In execution of a decree that the mortgagee had against Shri Ram this half share was sold at auction and was purchased by the mortgagee, Narain Dass. The mortgagee subsequently purchased the one-fourth of the property that had been left in the hands of Shib Charan and others. This was on 7th June 1940. In this way the mortgagee, Narain Dass, became the owner of three-fourths share of the property that was mortgaged to him. We may mention that on a partition in the family the interest of Narain Dass came to the share of his son, Ram Saran Dass, the opposite party No. 1.
3. Ram Saran Dass had filed a suit No. 76 of 1936, in the Court of the Civil Judge against Lutuf Ali and Khurshed Ali. This suit had to remain stayed when Lutuf Ali filed the application under Section 4, Encumbered Estates Act. The proceedings before the learned Special Judge took their usual course and on 6th January 1943, Ram Saran Dass filed a claim under Section 9 for Rs. 4,805 against Lutuf Ali. On 3rd April 1943, the learned Special Judge passed a decree for Rs. 4,448-7-0 in favour of Ram Saran Dass against the landlord applicant, Lutuf Ali under Section 14 of the Act. The decree was, in due course, along with other decrees, sent to the Collector and on 29th July 1944, the Collector passed the final award and the debts were thus liquidated. After the papers had been sent to the Collector, and while the proceedings were pending before him and before he had passed his final award, Ram Saran Dass wanted to revive his suit, No. 76 of 1936. which had remained stayed and get a decree against Khurshed Ali. He therefore, filed an application on 6th August 1943, before the learned Special Judge under Section 151 and Cr. 47, Rule 1, Civil P. C,; that the decree and the judgment dated 3rd April 1943. 'should be amended after determining the liability of the co-debtors'. It was mentioned in the body of the application that
'by oversight and mistake the Court did not pass any orders about the liability of Khurshed Ali in the judgment and decree under section 14 and this fact came to the notice of parties when proceedings in suit No. 76 of 1936 were taken before the Civil Judge on 2nd August 1943, when he passed an order that the liability of Khurshed Ali co-debtor should be determined by the Special Judge.'
This application was dismissed by the learned Special Judge and there was an appeal filed before the District Judge of Bulandshahr who allowed the appeal on 10th February 1945. It is against that order of the learned District Judge that this revision was filed and it was referred to a larger bench on 8th October 1947.
4. It is not possible from the referring order to know the exact reason for this reference to a larger bench. All that is said is that the question involved was of considerable importance. Learned counsel for the applicant, Khurshed Ali, has urged that the order of the Special Judge dismissing the review application was not an appealable order and the learned District Judge had, therefore, acted, without jurisdiction. He has relied on a Pall Bench decision of this Court in Ramesh Chand v. Dr. Shyam Lal : AIR1946All34 .
5. Mr. Gopalji Mehrotra, learned counsel for the opposite-party, does not dispute the proposition that if the application filed by his client was a review application then the case was covered by the decision mentioned above and no appeal could be filed in the Court of the learned District Judge. He has, however, strongly contended that the application was not a review application, but it was a fresh application to determine the liability of Khurshed All, which had not been so far determined by the learned Special Judge. He baa said that he does not want that the decree passed against Lutuf Ali, which has now been paid up, should, in any way, be disturbed and that it is possible to determine the liability of Khurshed Ali without going into the question of the liability of Lutuf Ali.
6. I do not think that the contention of the learned counsel for the opposite party can be accepted. Section 9, Sub-section (5), U. P. Encumbered Estates Act was enacted with the primary object of determining the liability of the landlord applicant and where the landlord applicant was a joint debtor along with certain others who had not applied under the Encumbered Estates Act it became necessary for a final determination of the liability that the Court should consider, in the presence of the other joint debtors, what was the total amount due and then determine how that liability was to be apportioned between the various debtors. If the liability of the landlord applicant is not in question then the Special Judge does not seem to be really concerned with the other debtors who are not before him. It is only because the other debtors are joint debtors with the landlord applicant that the apportionment becomes necessary. In this sense the application was clearly an application for re-view. The Court would have had to determine the total liability and find out how much was due from Lutuf Ali and how much was due from Khurshed Ali, and if it came to the conclusion that the amount due from Lutuf Ali was not the amount for which he had passed the decree under Section 14, he would have had to modify or amend that decree, I am, therefore, satisfied that this was an application for review. Learned counsel has admitted that in that case no appeal lay to the learned District Judge and his order was, therefore, without jurisdiction and must be set aside.
7. The revision is, therefore, allowed with costs.
Raghubar Dayal J.
8. I agree.
Mushtaq Ahmad J.
9. I agree.