RAGHUBIR SINGH Vs. BALKISHEN

JUDGEMENT

(1.) This is an appeal by Raghubir Singh and his son, Kunwar Brij Raj Singh, against an order refusing their application for amendment of a mortgage decree under Section 8, U. P. Debt Eedemption Act (XII [13] of 1940).

(2.) The application was dismissed by the Court below on the ground that appellant 1 was an undischarged insolvent and apppellant 2, though a discharged insolvent, had still his property vested in the Receiver. The effect of such vesting of the appellants' property in the Eeceiver was that they themselves had ceased to be the owners of any property and as such ceased to be entitled to apply for amendment of the decree under the said Act. The Court below relied on the case of Gauri Shankar v. Jamuna Prasad, 1944 ALL. L. J. 440 and that of Abu Obaida v. Jamil Hasan, 1947 ALL. W. R. H. C. 260.

(3.) Learned coansel for the appellants has disputed the correctness of the order on the ground that, under Section 28 (6), Provincial Insolvency Act, the debt in question being a secured debt, the appellants still continued to be the owners of the property so as to be entitled 60 apply for the relief granted by the C. P. Debt Redemption Act. His other ground against the judgment under appeal was that, under Expln. I to Section 2 (2), U. P. Debt Eedemption Act, where a proprietor or a tenant had a subsisting interest in the land, but, by reason of a temporary transfer, did not for the time being pay the rent or local rate payable in respect of that land, such rent or local rate should, for the purposes of this sub-section, be deemed to be payable by him.