BANARSI DAS Vs. NAND KISHORE

JUDGEMENT

(1.) This appeal has arisen out of proceedings under the U. P. Encumbered Estates Act. The appellants before us were the landlord-applicants under Section 4 of the Act. In their written statement under Section 8 the appellants, in accordance with the provisions of Clause (c) of Sub-section (1) of that section, gave a list of such property as, according to them, was liable to attachment and sale under Section 60, Civil P. C., besides the property which came within Clause (b) of that sub- section. There were numerous creditors and in the written statements of some of the creditors the contention was raised that the landlord-applicants had concealed certain houses belonging to them. The reply of the landlord-applicants was that these buildings were not liable to attachment and sale under Section 60, Civil P. C., and that therefore they had rightly omitted them from the list of properties given in their written statement under Section 8. Upon these respective contentions, the question arose whether the landlord-applicants were right in contending that the said buildings were not liable to attachment and sale under Section 60 of the Code, and the special Judge framed issue 3 upon this point. Evidence was led by the landlord-applicants to show that they were agriculturists within the meaning of Section 60 (1) (c), Civil P. C, and that the buildings in question came within the purview of that provision in the Code.

(2.) The learned Judge did not believe this evidence and held that the landlord applicants were not agriculturists within the meaning of Section 60 (1) (c) of the Code and that consequently they were not entitled to contend that the buildings in question were not liable to attachment and sale. The buildings were accordingly shown in the decree framed by the Court below upon the determination of that question. This appeal has been filed by the landlord-applicants against that decree. It may be stated that the Court below purports to pass its decree under Section 11 of the Act. It has been suggested at the bar that the determination of the question mentioned above does not strictly come within the language of Section 11. There is, however, no other section under which the Court below could frame a decree at the stage at which the proceedings stood, and we are not prepared to say that the Court below was wrong in purporting to frame its decree under that section. The language of that section, though not quite happy, is in our opinion wide enough to cover the determination of such a question also. The grounds taken in the memorandum of appeal attack the decision on issue 3 on the ground that the evidence led by the appellants was not properly considered by the Court below and that that evidence fully proved the fact that the landlord- applicants were agriculturists within the meaning of Section 60 (1) (c), Civil P. C.

(3.) Mr. Shiva Prasad Sinha, who appears for the appellants, has failed to satisfy us that the Court below was wrong in its appreciation of the evidence and that its decision on issue 3 is incorrect on that ground. He has, however, raised a question of law which was not taken in the memorandum of appeal. The argument is that the special Judge should not have allowed his clients to raise this question and should not have decided it as it was a question which, by reason of the provisions of Section 24 of the Act, was within the exclusive jurisdiction of the Collector. We are unable to accept this argument. As already indicated Section 8 (1) (c) of the Act requires the landlord-applicant to mention the nature and extent of only such property as, according to the landlord-applicant, is liable to attachment and sale under Section 60, Civil P. C. Therefore, the appellants could omit from their written statement any property which, according to them, was not so liable to attachment and sale. It is obvious that the creditors, when they came to file their written statements under Section 10, were entitled to point out that certain items of property had been wrongly omitted by the landlord-applicants. The landlord- applicants having thereupon claimed that they were justified in omitting those properties on the ground that they were not liable to attachment and sale in view of the provisions of Section 60 (1) (c), Civil P. C, the issue arose as to which of the two contentions was correct. We have no doubt whatsoever that it was the duty of the special Judge to frame an issue on the point and to decide it. Having decided it adversely to the landlord-applicants, it was further the duty of the special Judge to include these properties in the list attached to his decree, as required by Section 19 (2) of the Act. In our opinion the contention that in doing so the special Judge encroached in any manner upon the jurisdiction of the Collector is not correct. Learned Counsel has referred to proviso 1 to Section 24 (1) of the Act. In our judgment the objection mentioned there is an objection which is apart from the immunity of the property from liability to attachment and sale mentioned in Section 60 (1) (c), Civil P. C. Learned Counsel has also expressed an apprehension that the decision of the Court below might create the impression on the mind of the Collector that it is no longer open to him to do what provisos 1 and 2 to Section 24 (1) of the Act require him to do. We consider it sufficient to say that there is no justification for such an apprehension and we have no doubt that the Collector will not have any such impression on his mind. The appeal fails and is dismissed with costs.