NARSINGH DUBE Vs. MTDHANESRA KUER

JUDGEMENT

(1.) This revision has been filed by Narsingh Dube and Jagdish Narain Dube, objectors, in a proceeding under the Encumbered Estates Act. Mt. Dhanesra Kuer and others filed an application under the Encumbered Estates Act which in due course was sent to the learned Special Judge, 2nd grade, Ghazipur under Section 6 of the Act. Notices under Section 8, Encumbered Estates Act, were published on 11 December 1936. After the publication of the said notices the present applicants put in an objection on 27 May 1937, under Secs.9 and 10, Encumbered Estates Act. Under Section 9 they claimed that they were creditors of the landlord applicants and set out the details of the amount due. Under Section 10 they alleged that five fixed-rate tenancy plots in village Chandipur had been purchased by them under a registered sale deed dated 12 November 1935, and they were the owners of the said plots. On 11 September 1937, fresh notices were published under Section 11, Encumbered Estates Act, but no fresh objection was filed by the objectors Narsingh Dube and Jagdish Narain. On 11 December 1937, the learned Special Judge passed an order that no objection had been filed to the list of properties published under Section 11 in the gazette and he fixed 7 February 1938, for determination of the amount due to the creditors under Section 14 of the Act.

(2.) On 7 February 1938, the objectors Narsingh Dube and another filed an objection reiterating their claim to the five fixed-rate plots on the same ground as set out by them in their objection filed on 27 May 1937. This objection was rejected on the same date as time barred. After the rejection of this application there were certain amendments made in the U.P. Encumbered Estates Act and as a result of those amendments if a party could make out sufficient cause the learned Special Judge was Authorized to receive such application and proceed to decide it on the merits. The objectors filed a fresh application on 21 November 1939, after the amendment. On 4 May 1940, the learned Special Judge held that the objectors had made out sufficient cause for the delay and the objection was to be received on payment of Rs. 12 and disposed of on the merits. The said sum of Rs. 12 was paid within the time fixed. The landlord applicants were dissatisfied and filed an appeal before the learned District Judge against the order of 4 May 1940. The learned District Judge allowed the appeal on 3l August, 1942, and held that the objection should not have been entertained. It is against that order of the learned District Judge that this revision has been filed.

(3.) Learned Counsel appearing for Narsingh Dube and another has urged that no appeal lay before the District Judge of Ghazipur and the District Judge had, therefore, no jurisdiction to set aside the order of the learned Special Judge. The appeal was filed before the District Judge under Section 45(2), Encumbered Estates Act, and the arguments advanced are based on the ground that the words in Section 45 are that an appeal can be filed only against an order finally disposing of the case. Learned Counsel has argued that even if his objection be taken as a case it had not been finally disposed of. Only one issue had been decided and it had been held that his objection was within time. No decision on the merits had so far been given by the learned Special Judge. A preliminary objection has been raised on behalf of the landlord applicants Mt. Dhanesra Kuer and others that no revision lies to this Court. Learned Counsel appearing for the opposite party has urged that no revision lies under Section 115, Civil P.C., as an appeal lay to this Court under Section 45(2a), Encumbered Estates Act. He then contends that no revision lies to this Court under Section 46, Encumbered Estates Act, either as the requirements of that section have not been fulfilled. As regards the first objection, an appeal under Section 45(2a) shall lie to this Court only if the order of the learned District Judge was an order passed under Section 45. If no appeal lay to him under Section 45 and he had wrongly assumed jurisdiction and entertained the appeal, to my mind, a revision under Section 115, Civil P.C. is entertainable. The words "finally disposing of the case" have been introduced in Section 45 by an amendment of the year 1939, and, to my mind, it is clear that it is not every order against which an appeal can be filed but only an order which finally disposes of the case. I agree with learned Counsel for the opposite party that a case need not be treated as the whole of the proceeding under the Encumbered Estates Act pending before the learned Special Judge, but objections by different parties when disposed of under Section 11 or Section 14 may each be treated as separate cases. The word case occurs in Section 115, Civil P.C., and it has given rise to considerable conflict of judicial opinion as to what it really means. I will, therefore, not attempt to give any comprehensive definition of the word case , but, to my mind, the proceedings started by the objection of Narsingh Dube and Jagdish Narain can be taken to be a separate case, but even if this is the case, I cannot say that this has been finally disposed of. All that has-happened is that the preliminary issue as regards limitation has been decided, in favour of Narsingh Dube and Jagdish Narain. Their objection as regards title to the property has not yet been determined under Section 11. In that view of the case no appeal lay to the learned District Judge.