Iqbal Ahmad and Bajpai JJ.
1. This is a plaintiff's appeal arising out of a suit for the recovery of a sum of Rs. 22,645 odd on the basis of a sarkhat dated 17th June 1934, executed by three brothers named Pandit Sri Sadaitan Pande, Srish Chandra Pande and Sri Kar Pande in favour of the plaintiff firm Thakuri Sao and Purshottam Das. The plaintiffs firm carried on business in Sarguja in the Central Provinces and the three brothers named above carried on the business of commission agents in the district of Mirzapur. It is common ground that there were dealings between the parties and it is alleged by the plaintiff that on the settlement of accounts on 17th June 1934, a sum of Rs. 67,936 was found due to the plaintiff firm from the three brothers and that with respect to this amount a sarkhat was executed in favour of the plaintiff firm. The suit giving rise to the present appeal was directed only against Sri Sadaitan Pande and was for the recovery of one-third of the amount alleged to be due on the basis of the sarkhat. The other two brothers, viz. Srish Chandra Pande and Sri Kar Pande, were impleaded as pro forma defendants in the suit. The Court below holding that the suit was barred by Section 7(1)(b) of the Encumbered Estates Act (4 of 1935) dismissed the suit.
2. There is no controversy about the facts which are briefly as follows: On or before 23rd July 1936 separation was effected between the three brothers named above by means of an award. Thereafter on 30th September 1936, Srish Chandra Pande and Sri Kar Pande filed an application under Section 4, Encumbered Estates Act, and the Collector, in pursuance of the provisions of Section 6 of the Act, transmitted the application to the Special Judge. In their application the applicants admitted their liability to the plaintiff firm to the extent of two-thirds of the amount due to the plaintiff firm. The plaintiff firm then filed a written statement on 15th April 1937 before the Special Judge in accordance with the provisions of Section 10 of the Act and prayed that Sri Sadaitan Pande be made a party in the case. It however appears that prior to the date on which the written statement was filed by the plaintiff Sri Sadaitan Pande had already been made a party to the case. During the pendency of the case under the Encumbered Estates Act the suit giving rise to the present appeal was filed on 17th May 1937. Sri Sadaitan Pande contended that the suit was barred by Section 7(b) of the Act, and this contention was accepted by the learned Civil Judge.
3. In appeal before us it is contended that the decision of the Court below is erroneous and that Section 7(b) of the Act has no application to the case and in support of this contention reliance has been placed on the decision of a learned Judge of this Court in Swadeshi Bima Co. Ltd. v. Shiv Narain (1939) 26 AIR All 75. This decision finds support from certain observations contained in the judgment of this Court in Civil Revision No. 470 of 1936 decided on 24th November 1937, by Harries and Rachhpal Singh JJ. On behalf of the respondent reliance has been placed on the decision of Thom and Rachhpal Singh JJ., in Inamullah v. Babu Ram and the decision of Sulaiman C.J. and Harries J., in Babu Ram v. Manohar Lal and on the decision of Bennet and Verma JJ., in Souti Raghubar Dayal v. Amba Prasad . The cases relied upon by the parties are not easily reconcilable and the question that arises for decision in the present appeal is one of general importance. Accordingly we consider that it is desirable that there should be an authoritative pronouncement on the question. We, therefore, direct that the case be laid before the Hon'ble the Chief Justice with the request for the constitution of a Full Bench.