(1.) This is an application in revision under Section 25, Small Cause Courts Act. It arises out of a suit for recovering a certain amount on. the basis of a pronote. The applicant here was the plaintiff in the Court below. The pronote upon which the suit is based was executed by the opposite parties Shiv Narain Katiyar and Kanhi Singh on 21 July 1934 and the suit was instituted on 20 July 1937, that is on the last day of limitation. The plaintiff impleaded both the executants of the pro- note as defendants. It is admitted that one of the defendants, namely Shiv Narain Katiyar, had previously made an application under Section 4, Encumbered Estates Act, and had obtained an order from the Collector under Section 6 of that Act. The suit was not contested by Shiv Narain Katiyar, but the other defendant Kanhi Singh wanted to tako advantage of the fact that Shiv Narain Katiyar had made an application under Section 4, Encumbered Estates Act, and had secured an order of the Collector under Section 6 of that Act. He therefore made an application to the Court, in the first instance, praying that the suit should be stayed, but a few days later made another application in which he claimed that the suit should be dismissed altogether because it could not be instituted under the law. The learned Small Cause Court Judge has allowed that contention to prevail and has consequently thrown out the whole suit. Hence the present application in revision.
(2.) The learned Small Cause Court Judge is of the opinion that the defendant's contention was well founded on Section 7(i)(b), Encumbered Estates Act, which runs as follows: No fresh suit or other proceeding other than an appeal or revision against a decree or order or a process for ejectment for arrears of rent shall, except as hereinafter provided, be instituted in any Civil or Revenue Court in the United Provinces in respect of any debts incurred before the passing of the said order.
(3.) The argument on behalf of the applicant is that the learned Judge has not correctly interpreted Section 7(i)(b), Encumbered Estates Act, and has consequently erred in throwing out the suit altogether, that is, even so far as it related to Kanhi Singh, who has made no application under the Encumbered Estates Act. It is contended that the plea that the suit could not be instituted was not open at all to Kanhi Singh who had made no such application. Upon a very careful consideration of the scheme of the Encumbered Estates Act and Section 7 and other relevant provisions contained therein, I have no hesitation in holding that the view taken by the learned Small Cause Court Judge is entirely wrong. Section 7(i)(b) is no doubt in very general terms and refers to a suit or other proceeding "in respect of any debts incurred before the passing of the said order", but a moment's Consideration will show that the debts in question must be debts to which a landlord is subject as referred to in Section 7(i)(a). Again the reference in Section 7(i)(b) is to debts incurred before the passing of the said order" which clearly refers to the order passed by the Collector under Section 6 of the Act. It is evident that the Collector's order under Section 6 must relate to an application made by a landlord under Section 4, Encumbered Estates Act.