SM RADHA Vs. SM GULZARI

JUDGEMENT

(1.) This is a first appeal from order against the order of the learned Civil Judge of Banaras setting aside the order of the learned City Munsif of Banaras rejecting the plaint of respondent 1, who is the main respondent in this appeal, under clause (d) of Rule 11 of order 7, Civil P.C.

(2.) The property in suit is a house in the city of Banaras which respondent 1, sm. Gulzari Kuer, claims to be her own property. In the year 1936 Jagdamba Prasad, the farther-in-law of the respondent and Ganesh Prasad her husband together with her sons and nephews, who were all arrayed as defendants in the suit, presented an application under the Encumbered Estates Act before the Collector of Banaras. It was in due course transferred to the Court of the Special Judge, Second Grade. The property in question was shown by the landlords-debtors as their own property. The Special Judge declared this property along with other properties belonging to the debtors as liable to attachment, sale or mortgage in satisfaction of their debts, under Section 11, Encumbered Estates Act, 1934 (U.P. Act (XXV [25] of 1934). Thereafter, he determined the claims to the creditors under Section 14 of the Act and sent the decrees under Section 19 to the collector for execution. The Collector auctioned the property in dispute as that of the debtors on 20-7-1943. Prior to the sale on 8-2-1943 the respondent had presented an application before the :Special Judge under Section 11 to the Act claiming the property in suit as her own. It will be noted that under sub-Section (2) of Section 11 the time allowed for preferring a claim of this nature is three months from the date of the publication of the notice in the official gazette under Sub-section (1). But a proviso was subsequently added to that sub-section by Section 13, U.P. Act XI [11] of 1939 which permits a claimant, if he satisfies the Special Judge that he had sufficient cause for not making his application within the above period, to prefer his claim at any time before such property is transferred to any person under the provisions of Sections 24, 25, 28 or 31 a bond is issued byu the Collector to a creditor under Section 30 or Section 31. This Application was, however, dismissed by the Special Judge on 3-4-1943, and thereafter the respondent field the present suit in the Court of the City Munsif of Banaras. The view taken by the learned Munsif was that inasmuch as any order passed by the Special Judge under Section 11 is, under Sub-section (4) of that section, to be deemed to be a decree of a civil Court of competant jurisdiction and Section 47 of the Act provides that no proceedings of the Collector or the Special Judge under the Act shall be questioned in any Court except as provided in Sections 45 and 56 of the Act, which relate to appeals and revisions, the respondents' suit was not maintainable. He accordingly rejected the plaint under clause (d) of Rule 11 of Order 7. civil P.O., as already stated above.

(3.) On appeal, the learned Special Judge of Banaras set aside the decree of the learned City Munsif and directed that the plaint be admitted to its original number and proceeded with according to law. He considered the question whether the decree under Section 11, Encumbered Estates Act, was res judicata or not for the purposes of the present suit and was of opinion that inasmuch as the claim of the respondent had been dismissed on the ground of limitation only, the decree did. not amount to res judicata and he relied upon the case of Har Sarup v. Anand Sarup, 1942 ALL. L. J. 506. That case was decided by a Bench of this Court. A question arose in that case whether a decree in a certain suit which had been dismissed on the ground of limitation was res judicata or not for the purposes of a subsequent suit brought by a member of the same family. Their Lordships say: