SHEIKH MOHAMMAD Vs. MTRUKMINA KUNWAR

JUDGEMENT

(1.) This is an application in revision against an order dated 26-8-1944, passed by the Civil Judge of Azamgarh rejecting ac application under Section 151, Civil P.C., filed by Sheikh Mohammad, the applicant before us and, certain other persons. It appears that Sheikh Mohammad and certain other person filed a suit in the Court of the Civil Judge of Azamgarh on 5-8-1937 against Mt. Rukmina Kuer and others who are some of the opposite parties, in the present revision. The suit was, inter alia, for specific performance of an alleged contract of sale. Prior to the institution, of the suit viz., on 28-10-1936, Rukmina Kuer had filed an application under the Encumbered Estates Act, which application has been, in due course, forwarded by the Collector to a Special Judge. On the date of the suit filed by Sheikh Mohammad and others, the E.E. Act case, consequent on the application of Rukmina Kuer, was pending before the Special Judge and one of the points raised in defence in the suit by the defendants was that, in view of the provisions of Section 7, Encumbered Estates Act, the suit was not maintainable. This contention of the defendants found favour with the Civil Judge who dismissed the suit on 9-9- 1938.

(2.) Being aggrieved by the dismissal of the suit, Sheikh Mohammad and other plaintiffs preferred a first appeal in this Court. The appeal was decided by this Court on 1-10-1942. This Court held that the view taken by the Court below as to the effect of Section 7 E.E. Act was erroneous. and that all that the Court below could do was to stay the hearing of the suit till the decision of the E.E. Act case. In this view of the matter this Court set aside the decree of the Civil Judge dismissing the suit and remanded the suit to that Court with the direction to stay the hearing of the suit tilt the decision of the E.E. Act case. After. the remand the learned Civil Judge, m pursuance of the directions contained in the judgment of this Court, stayed the hearing of the suit. He fixed dates from time to time with a view to ascertain from the Court of the Special Judge concerned as to whether or not the E.E. Act case had been decided. The order sheet discloses that eventually on 25-5- 1944, it was ordered that as no intimation had till then been received from the Court of the Special Judge, the Special Judge concerned be requested to intimate the Court about the result of the E.E. Act case and that "the suit be put on 3-5- 1944, for the passing of proper orders."

(3.) In the meantime the Special Judge decided the E.E. Act case but, it is alleged, that he had committed some mistake in the framing of the decree under Section 11, Encumbered Estates Act, and accordingly the present applicant and his co- plaintiff's who were amongst the opposite parties to the E.E. Act ease, filed an application before the Special Judge praying that the decree passed by him with respect to the claim put forward by them be amended. By 3-5-1944, the Special Judge had communicated to the Civil Judge, who was seized of the specific performance suit, the fact that he had decided the E.E. Act case. It is, however, to be noted in this connection that no intimation was sent to the Civil Judge about the application filed by the present applicant and his co-plaintiffs for the amendment of the decree passed under Section 14.