KHURSHED ALI KHAN Vs. RAM SARAN DAS

JUDGEMENT

(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