KANHYA LAL Vs. MAHESHWAR NARAIN

JUDGEMENT

(1.) We have before us a first appeal from order and also a revision against an order of the special Judge of Farrukhabad, dated 9 July 1936, staying proceedings in a suit for specific performance of contract. The suit was instituted on 1 October 1935 and the contract was alleged1 to have been entered into on 28 August 1935. The suit was filed by Kanhaiya Lal who is the appellant and applicant before us and the defendants to the suit were Maheshwar Narain and his two minor sons Surendra Narain and Narendra Narain. 6 July 1936 was fixed for hearing of that suit in the Court of the Civil Judge. Meanwhile proceedings had been taken by Maheshwar Narain under the Encumbered Estates Act (Local Act No. 25 of 1934). Cer. tain creditors, namley Mt. Gomti Bai, Gau Charan, Shib Charan and KunjBehari Lai, then applied to the special Judge for stay of the suit for specific performance of contract. We are informed that Maheshwar Narain had also attempted on several occasions before the Civil Judge to have that suit stayed but without success; but on 6 July 1936, i.e. on the date fixed for hearing in the suit for specific performance of contract, the special Judge granted the prayer of Mt. Gomti and others and stayed proceedings purporting to act under Section 7, Encumbered Estates Act, in the suit for specific performance of contract.

(2.) It is against that order that the present appeal and revision have been filed. The appeal was filed on 29 July 1936 and the respondents to it were Maheshwar Narain and his two sons. These were the defendants to the suit for specific performance of contract; and those creditors who had successfully applied for stay under Section 7, Encumbered Estates Act, were not made respondents to the appeal. At a considerably later date this mistake was discovered and therefore a revision was filed in this Court in which Mt. Gomti Bai and others as well as Maheshwar Narain were impleaded as opposite party. Section 46, Encumbered Estates Act provides that: Any Court empowered under Section 45 to hear an appeal under this Act may of its own motion, or on the application of any person concerned, call for the record of proceedings in any case under this Act pending in a Court from which appeals lie to such Court, and after giving due notice to the parties concerned pass such order thereon consistent with the provisions herein contained as it thinks fit, and such order shall be final.

(3.) It is thus clear that this Court has wide powers of revision. We now have all the parties before us and are in a position to determine the points in controversy, treating the whole matter as a revision. The first point taken by learned Counsel for Kanhaiya Lal, applicant, is that the special Judge had no jurisdiction to stay proceedings in a suit which was pending in another Court. Section 7(1)(a) of the Act provides that all proceedings pending at the date of the said order (i.e. an order under Section 6) in any Civil or Revenue Court in the United Provinces in respect of any public or private debt to which the landlord is subject...shall be stayed....