LAWS(ALL)-1949-8-34

MOHAN LAL Vs. GOKARAN SINGH

Decided On August 05, 1949
MOHAN LAL Appellant
V/S
GOKARAN SINGH Respondents

JUDGEMENT

(1.) This second appeal from order raises a question of law, which does not appear to be covered by any authority.

(2.) Bhola Singh and his son, Hakim Singh, having mortgaged certain properties, sold the equity of redemption of a moiety share in one of the items of property to one Subedar Singh. Mohan Lal obtained a decree on the basis of the mortgage in the year 1932 against Bhola Singh and his son, Hakim Singh, without impleading Subedar Singh as a defendant. Bhola Singh and his two sons applied for relief under the Encumbered Estates Act in the year 1936, and Mohan Lal, having set up a claim in those proceedings, under the mortgage decree, obtained a fresh decree under the Act in the year 1939. Subedar Singh sold the property purchased by him from Bhola Singh to Gokaran Singh in the year 1940. In 1942 Gokaran Singh filed an objection under S. 11, claiming that the property purchased by him was not liable for the payment of the debts of the applicants under the Encumbered Estates Act. His claim was allowed in the year 1944. Mohan Lal then applied under Section 9 (5), Encum-bered Estates Act, praying that the debt due to him be apportioned between the landlord applicants and Gokaran Singh, and that the liability Gokaran Singh be determined. The learned Special Judge allowed this application and determined amount payable by Gokaran Singh. The lower appellate Court set aside the order of the learned Special Judge and, holding that Section 9 did not apply to a case such as the present case, dismissed Mohan Lal's application. Mohan Lal has filed this appeal against the aforesaid order of the lower appellate Court.

(3.) Learned counsel for the appellants contends that this is a case where there were several joint-debtors, some of whom had applied for relief under the Act, and others had not, and, therefore, the liability should have been apportioned.