PANDEY PARSHOTAM PRASAD Vs. BALRAM PRASAD MISRA

JUDGEMENT

(1.) THIS appeal has been filed on behalf of a creditor whose claim under Section 9, U. P. Encumbered Estates Act (No. 35 of 1934) was rejected on the ground that it was time-barred. The landlord-applicants filed an application under Section 4, U. P. Encumbered Estates Act, before the Collector which, in due course, was sent to the learned Special Judge, second grade, basti. The landlord applicants then filed an application under Section 8. U. P. Encumbered estates Act, before the learned Special Judge and on 12-6-1937, notices were published in the U. P-Gazette in accordance with the provisions of the Act and the creditors were required to put in their claims within three months from the date of the notification. According to Section 9. before its amendment in 1939, the Special Judge could on sufficient cause being shown grant only two months extension and no more. The last date for the creditors putting in their claims could not thus be extended beyond 12-11-1937. The claim was, however, filed on 18-1-1938, after the period of limitation had expired and the reason given for the delay in filing the claim was that the creditor's father had been murdered on 20-11-1936, and he was involved in the prosecution of the culprits following the murder who were convicted on 22-9-1937, and the creditor did not know of the Encumbered Estates proceedings and was not able to put in his claim before 18-1-1938. The law, as it stood then, did not give any option in the matter if the period fixed under Section 9 had expired and this application was rejected on the 17-11-1938. Against the order dismissing the application under section 9 an appeal was filed in the court of the District Judge on 20-12-1938. This appeal was admitted and numbered as Encumbered Estates Appeal No. 50 of 1938 and notices were issued to the respondents. While the notices were being served on the respondents, the Chief Inspector of Stamps made a report on 11-9-1939, that the memorandum of appeal was not sufficiently stamped. This report was brought to the notice of the learned counsel for the appellant and on 25-9-1939, he filed an objection to the report and contested it. The learned judge on 25-1-1940, directed that a copy of this objection may be sent to the revenue authorities concerned and they may be asked to file a reply by 24-2-1940.

(2.) IT may be mentioned that by reason of the great hardship that had been caused by the restriction put on the power of the Special Judge to extend the period only for a maximum limit of two months and no more and no option being given to the court to extend that period even for good cause, the legislature amended Section 9 by the Amendment Act No. 11 of 1939, which came into force on 30-9-1939. After the amendment the creditor made an application on 28-11-1939, that, his claim be reconsidered. On 24-2-1940, on the date fixed when the appeal was put up again before the learned District Judge, the learned counsel for the appellant stated that he did not wish to proceed with the appeal and the learned Judge noted that the deficiency in the court-fee had not been paid and the appellant did not wish to proceed with the appeal and "the appeal be struck off. " the application filed on 28-11-1939, was to the effect that by reason of the amendment to section 9, U. P. Encumbered Estates Act the claim filed on 18-1-1938, may be considered as within time and it may be admitted and the case decided on the merits. This application was dismissed on the 22nd of January, 1942, and the learned Special Judge relied on a decision of a learned single Judge of this Court in -- 'mt. Kishni v. Murli Singh', AIR 1940 All 344 (A ). There was an appeal filed against that order and that appeal was dismissed by the learned District Judge on 21-4-1942. This second appeal is against that order.

(3.) LEARNED counsel for the appellant has urged that the amendment must be deemed to apply to all debts due from landlord-applicants, Whether they had Already become time-barred or not, and after the amendment he was entitled to have his application dated 18-1-1938, reconsidered.