UDREJ SINGH Vs. RAM BAHAL SINGH

JUDGEMENT

(1.) This is a revision under Section 115,. Civil P.C, against an order of the District Judge, Azamgarh, dated 2 January, 1913. The facts, which are admitted by the parties, are as follows: In the course of proceedings under the Encumbered Estates Act initiated on an application under Section 4 of that Act made by the opposite parties to this revision, the learned Special Judge, Second Grade, on 18th. August 1941, passed an order on the objection filed by the applicants in this revision under Section 11 of that Act. By that order, the learned Special Judge extended the time for filing the objection on payment of Rs. 40 as costs within a week from that date and directed that in default of payment, the objection was to stand dismissed. On 25 August 1941 counsel for the parties made a statement before the learned Special Judge, to the effect that the question of the payment of costs might be postponed until the disposal of the appeal filed against the order, dated 18 August 1941. On 22 December, 1941, this appeal, which had been filed by the opposite parties to the revision, was dismissed by the learned District Judge. On 30 April 1942 the record was received by the Special, Judge, and thereupon, he directed that the costs of Rs. 40 payable in accordance with the aforesaid order, dated 18 August 1941 should be paid within two weeks and that in default of payment, the objection under Section 11, was to stand dismissed. In compliance with this order, the applicants paid the amount of costs within the time fixed by the Courts with the result that on 27 July 1942 the learned Special Judge passed an order admitting the objection. From the order, dated 30 April 1942 by which two weeks time was fixed for the payment of costs, an appeal was taken to the learned District Judge, who on 2 January, 1943, allowed the same and set aside the order appealed against.

(2.) In the course of his judgment, the learned District Judge made the following observations: By an appellate order a party was ordered to pay certain costs. When the record of the case was received back by the lower Court, it allowed that party two weeks time for payment, although no such provision was made in the appellate Court's order.

(3.) Learned Counsel for the applicant urges that the appellate order never directed the payment of costs. This contention of learned counsel is correct. I have examined the appellate order, dated 22 December, 1941. It is clear that it was the Special Judge and not the appellate Court which had imposed the condition of payment of Rs. 40 as costs. The appellate order, which merely dismissed the appeal, was not concerned with the question of time for payment of the aforesaid sum of Rs. 40 as by consent of the parties, this matter had been postponed until the disposal of the appeal. Learned Counsel for the applicants raised two points in support of this revision. The first point is that no appeal lay to the District Judge inasmuch as the order appealed against was not one finally disposing of the case before the Special Judge. The question what is meant by the expression "the case" is a difficult one. It has been argued on behalf of the opposite parties that the proceeding relating to the question as to whether there was sufficient cause for extension of time for filing the objection under Section 11, U.P. Encumbered Estates Act, was in itself "a case" and the order which disposed of this question was final. On the other hand, learned Counsel for the applicants contends that "the case" before the Special Judge was the entire proceedings under the Encumbered Estates Act and not simply the matter relating to the extension of time for filing objection under Section 11 of that Act. In the view which I am disposed to take on the merits of the revision before me, it is not necessary to consider this question.