1. This appeal has been filed by Amba Prasad objector against an order passed under Section 11, Encumbered Estates Act. The land-lord applicants and the other creditors are the respondents to this appeal and though the names of four counsel are printed in the list and in the paper book as having been engaged on behalf of the respondents no one has appeared. Mr. Man Singh and Mirza Hamidullah Beg have with drawn from the ease on the ground that they have not been paid and Dr. M.A. Rauf is no longer at the Bar. Mr. Man Singh has stated that when Dr. Rauf gave up practice Mr. Man Singh was engaged in his place but he was never paid his fee. Mr. B. Dayal, we are informed, appears for the appellant. The result is that we have to decide this appeal only on the arguments of learned Counsel for the appellant with-out any assistance from the counsel for the respondents.
2. The history of this case is rather complicated. There was a decree for arrears of theka money against the landlord applicants. In execution of that decree the properties in villages Rondha and Sherpur were sold at auction on 21st January 1936, and were purchased by Amba Prasad, the objector, and one Gopi Nath. After this purchase but before the confirmation of the sale the judgment-debtors filed an application under Section 4, Encumbered Estates Act on 13th February 1936. The Collector sent the papers to the Special Judge, First Grade, Bulandshahr, and by reason of the provisions of Section 7, Encumbered Estates Act, the sale could no longer be confirmed and as a matter of fact on 11th March 1936, the sale was set aside by the Collector. On 23rd May 1936, an application was filed by Amba Prasad and Gopi Nath, that by reason of a Government Order No. 642 dated 9th April 1936, the provisions of Section 7, Encumbered Estates Act, did not apply to execution of decrees for arrears of rent. Relying on this Government Order the Collector set aside its order dated 11th March 1936, and on 27th June 1936, confirmed the sale' and gave to Amba Prasad and Gopi Nath possession of the properties in villages Rondha and Sherpur. The judgment-debtors filed an appeal against the order of the Collector dated 27th June 1936 in the Court of the District Judge.
3. While this appeal was pending Amba Prasad and Gopi Nath filed an application in the revenue Court for partition of village Rondha, on 14th April 1937. The landlord applicants also prayed that their share should also be partitioned and formed into a separate mahal. Before the revenue Court no one raised the point that the order of the Collector confirming the sale of the share in village Rondha was under appeal to the District Judge. The revenue Court made a perfect partition of village on 22nd August 1988 and included in the share of the objector Amba Prasad the portion purchased by him at auction on 21st January 1936. A separate mahal was prepared of the share belonging to Muazam Ali Khan and others. On 16th September 1938, the District Judge allowed the appeal and set aside the order confirming the sale on the ground that the Government order was ineffective and could not amend the law as contained in Section 7, Encumbered Estates Act. Amba Prasad and Gopi Nath came up to this Court in second appeal but the appeal failed. After the order of the District Judge, dated 16th September 1938, the landlord applicants did not apply for re-delivery of possession of the property which had been given to Amba Prasad under the order of the Collector dated 27th June 1936 and he has all along been in possession of the shares in villages Rondha and Sherpur that he had purchased on 21st January 1936. In the year 1940 Amba Prasad filed an objection under Section 11, Encumbered Estates Act, with a prayer that the delay in filing the application may be condoned. The learned Special Judge on 6th March 1943 condoned the delay, after hear-ing the parties, on payment of Rs. 80 as damages within a week. It appears from the order-sheet that the amount was paid and the delay was, therefore, condoned. The objection was then heard on the merits and the learned Special Judge dismissed it on 27th April 1943. It is against that order that this appeal has been filed.
4. On behalf of the appellant, it is urged that whatever may be said about the auction sale the fact remains that there were partition proceedings in the revenue Court and its order dated 22nd August 1938 is final by reason of Section 233(k), Land Revenue Act, and the landlord, applicants have no right to challenge the said partition. Learned Counsel has urged that Section 7, Encumbered Estates Act, does not in any way affect the right to claim partition in the revenue Court and the proceedings before it for partition were, therefore, perfectly valid and it was open to the landlord applicants to bring it to the notice of that Court that the order of the Collector dated 27th June 1936 was under appeal before the District Judge and they not having done so and having allowed the. partition to be effected on 22nd August 1938 have no right to challenge the partition. This argument appears to be sound and we must, therefore, hold that so far as village Rondha is concerned by reason of the fact that no objections were taken before the revenue Court the partition proceedings debar the landlord applicants from claiming the property as their own.
5. As regards the other village Sherpur, learned Counsel has urged that the landlord applicants had a right to apply for restitution within three years of the order dated 16th September 1938 under Article 181, Limitation Act, and they not having done so at the determination of the period fixed for filing the application for restoration of possession their title to the property was extinguished. The order of the District Judge was passed in the year 1938. The landlord applicants had a right to file an application for restitution. By reason of the provisions of Section 144 they could not file a suit. The only question for consideration is whether the provisions of Section 28, Limitation Act, would apply to a case where a landlord applicant has failed to make an application for restitution under Section 144, i.e., whether an application for restitution of the property under Section 144 is in the nature of a suit. We have already pointed out in several cases that the word 'suit' has not been defined in any Act. Section 2(2), Civil P.C., provides that an order determining any question under Section 144 shall be deemed to be a decree. The words 'for instituting a suit under Section 28' must be deemed to include an application under Section 144, when Section 144 provides that no separate suit would lie and Section 2(2) provides that an order under Section 144 shall be deemed to be a decree. Before Section 144 was enacted, after a decree was amended or set aside, if a party wanted restitution he had to file a separate suit. This section was introduced to provide a speedy remedy to the person which has got a right to a relief by reason of a superior Court setting aside an erroneous decision of a lower Court. The landlord applicants having, therefore, by lapse of time lost their right to file an application under Section 144 for recovery of the property they must be deemed to have lost their title to it. Village Sherpur must also be held to belong to Amba Prasad, appellant.
6. The appeal is, therefore, allowed ex parte and the order of the Court below is set aside, taut as the respondents are not represented we make no order as to costs.