BABOO RAJ NARAIN Vs. AHMADI JAN

JUDGEMENT

(1.) This is an appeal by a creditor against an order passed by a special Judge, first grade, exercising jurisdiction under the Encumbered Estates Act (25 of 1934) and arises under the following circumstances. Ahpaadi Jan, who is respondent in the present appeal, filed an application under Section 4 of the Act on 17 October 1936. Her application was, in due course, transmitted by the Collector to the special Judge and, thereafter, Ahmadi Jan filed a written statement in accordance with Section 8 of the Act. One of the debts shown in the written statement was the debt due on the basis of a mortgage deed dated 22 November, 1928, executed by Ahmadi Jan in favour of Mt. Morni, the wife of Raj Narain, appellant. The allegation contained in the written statement with respect to this debt was that the debt was, as a matter of fact, advanced by one Ram Ghulam and that Mt. Morni was a mere benamidar for him (Ram Ghulan). It was also alleged that, Ram Ghulan having died, his legal representatives were Raj Narain and Pirbhu Narain, and that the last two named persons were the real mortgagees under the said mortgage deed. The names of Raj Narain and Pirbhu Narain were shown in the array of the creditors mentioned in the written statement with the result that the notices prescribed by Section 9 were issued to these two persons. The notices were served personally on Raj Narain and Pirbhu Narain in January 1937. The notice in the Gazette was published on 1 May 1937. But, before the publication of the notice in the Gazette, Morni filed a written statement of her claim with respect to the mortgage debt on 31 March 1937. It is not disputed that the written statement of Morni was within the time prescribed by Section 9 of the Act. It is also a fact that neither Raj Narain nor Pirbhu Narain filed a written statement, within the time allowed by Section 9, claiming to be entitled to the mortgage debt.

(2.) Morni died on 7 August 1937, and thereafter, on 6 October 1937, Raj Narain filed an application praying that, as he was the real mortgagee, his name be substituted for Mt. Morni. Pirbhu Narain also filed an application on 4th December 1937, alleging that the mortgage debt was advanced by a joint family of which Ram Ghulam, Pirbhu Narain and Raj Narain were members and that, on the death of Ram Ghulan, both Pirbhu Narain and Raj Narain were entitled to the mortgage debt. On this allegation, Pirbhu Narain also prayed to be substituted as a legal representative of Mt. Morni. These applications of Raj Narain and Pirbhu Narain were opposed by Ahmadi Jan, the landlord applicant, on the ground that the applications, in fact and in substance, were written statements of claim within the meaning of Section 9 of the Act and, as they were filed after the expiry of the period prescribed by that section, they were time-barred. In view of the respective contentions of the parties the learned Judge framed the following issues: (1) Whether the claim of Raj Narain is or is not timebarred? (2) Whether the mortgage debt due under the mortgage deed dated 22 November, 1928, executed by Mt. Ahmadi Jan in favour of Mt. Morni deceased, belongs to Raj Narain aforesaid alone or to him and Pirbhu Narain jointly?

(3.) On issue 1 the learned Judge held that the application of Raj Narain dated 6th October 1937, was tantamount to a written statement of claim under Section 9 and, as it was filed more than five months after the publication of the notice in the Gazette, it was barred by limitation. In this view of the matter, he concluded that the debt due on the basis of the mortgage deed must be deemed to be discharged under Section 13 of the Act. Having arrived at these conclusions, he refrained from deciding issue No. 2 noted above and dismissed "the claim" of Raj Narain. In our judgment the decision of the Court below cannot be supported.