BHATELE RAMESH CHAND Vs. DRSHYAM LAL

JUDGEMENT

(1.) The facts involved in this appeal are simple. The difficulty arises from the draftsmanship of the United Provinces Encumbered Estates Act of 1934. Respondent 2, B. Sarda Pershad and his two sons, respondents 3 and 4 as landlords applied for the benefit of the United Provinces Encumbered Estates Act, 1934. After taking the usual steps, the Special Judge of Etawah, who was a Special Judge of the first grade, on 1 September 1938 passed a decree under Section 14 (7) of the Act finding the amounts due to the claimants against the debtors estate and giving them simple money decrees for the amounts due to them.

(2.) In these decrees, the learned Special Judge was concerned in particular with two claimants, one of whom is the present appellant, Bhatele Ramesh Chand, and the other, respondent 1, Dr. Shyam Lal. The matter need not be unduly complicated by tracing the history of the claims of these two gentlemen beyond observing that, in the events which had happened, the former, the appellant Bhatele Ramesh Chand, had in 1933 obtained a decree against the landlords, or their predecessors-in-title, on a mortgage of 7 June 1920, which was itself a renewal of an earlier security of 15 November 1907. Respondent 1, Dr. Shyam Lal, also in the year 1934 obtained a decree against the landlords or their predecessors-in-title on a mortgage in part covering the same property, dated 16 February 1922, which was also a renewal of an earlier security of 3 October 1918. So far as time goes, the decrees and the securities of the appellant-both original and renewed-were, therefore, respectively earlier in date than the decrees and the securities of the respondent, Dr. Shyam Lal. These two claimants accordingly came before the Special Judge in the Encumbered Estates Act proceedings as mortgagees; and, as mortgagees there were no doubt questions of priority between them.

(3.) The learned Special Judge in his judgment of 1 September 1938 found a sum of Rs. 15,000 odd due to the appellant in respect. of his mortgage decree and a sum of Rs. 7000 odd due to respondent 1 in respect of his decree. In his judgment, however, the Special I Judge went further than merely to find the amounts due under Section 14(7) of the Act. He also "ranked" the debts for priority under Section 16 of the Act. It is, perhaps, questionable, though it need not be unduly emphasised at this stage, whether the Special Judge was wise to confuse his functions under Section 14(7) with those under Section 16 of the Act and to incorporate the ranking of the debts under the latter section in his findings as to the amounts due under the former section. But, however that may be, the learned Special Judge in this case, so far as his judgment was concerned, did place the debts in the various classes prescribed by Section 16. Moreover, he numbered them consecutively within those classes. Thus in class (4) in his judgment of 1st September 1938 he included the debts due to respondent 1 and to the appellant respectively in that order numbering respondent 1's debt as No. 1 in the class and the appellant's debt as No. 2 in the clas3. It is this that has led to the difficulty. At the same time, however, the formal decrees were drawn up as provided by Section 14(7) of the Act merely declaring the sums due to the appellant and respondent 1 respectively.