AMBA PRASAD Vs. MUMTAZ ALI KHAN

JUDGEMENT

(1.) This appeal has been filed by Amba Prasad objector against an order passed under Section 11, Encumbered Estates Act. The land-lord applicants and the other creditors are the respondents to this appeal and though the names of four counsel are printed in the list and in the paper book as having been engaged on behalf of the respondents no one has appeared. Mr. Man Singh and Mirza Hamidullah Beg have with drawn from the ease on the ground that they have not been paid and Dr. M.A. Rauf is no longer at the Bar. Mr. Man Singh has stated that when Dr. Rauf gave up practice Mr. Man Singh was engaged in his place but he was never paid his fee. Mr. B. Dayal, we are informed, appears for the appellant. The result is that we have to decide this appeal only on the arguments of learned Counsel for the appellant with-out any assistance from the counsel for the respondents.

(2.) The history of this case is rather complicated. There was a decree for arrears of theka money against the landlord applicants. In execution of that decree the properties in villages Rondha and Sherpur were sold at auction on 21 January 1936, and were purchased by Amba Prasad, the objector, and one Gopi Nath. After this purchase but before the confirmation of the sale the judgment-debtors filed an application under Section 4, Encumbered Estates Act on 13 February 1936. The Collector sent the papers to the Special Judge, First Grade, Bulandshahr, and by reason of the provisions of Section 7, Encumbered Estates Act, the sale could no longer be confirmed and as a matter of fact on 11 March 1936, the sale was set aside by the Collector. On 23 May 1936, an application was filed by Amba Prasad and Gopi Nath, that by reason of a Government Order No. 642 dated 9 April 1936, the provisions of Section 7, Encumbered Estates Act, did not apply to execution of decrees for arrears of rent. Relying on this Government Order the Collector set aside its order dated 11 March 1936, and on 27 June 1936, confirmed the sale" and gave to Amba Prasad and Gopi Nath possession of the properties in villages Rondha and Sherpur. The judgment- debtors filed an appeal against the order of the Collector dated 27 June 1936 in the Court of the District Judge.

(3.) While this appeal was pending Amba Prasad and Gopi Nath filed an application in the revenue Court for partition of village Rondha, on 14 April 1937. The landlord applicants also prayed that their share should also be partitioned and formed into a separate mahal. Before the revenue Court no one raised the point that the order of the Collector confirming the sale of the share in village Rondha was under appeal to the District Judge. The revenue Court made a perfect partition of village on 22 August, 1988 and included in the share of the objector Amba Prasad the portion purchased by him at auction on 21 January 1936. A separate mahal was prepared of the share belonging to Muazam Ali Khan and others. On 16 September 1938, the District Judge allowed the appeal and set aside the order confirming the sale on the ground that the Government order was ineffective and could not amend the law as contained in Section 7, Encumbered Estates Act. Amba Prasad and Gopi Nath came up to this Court in second appeal but the appeal failed. After the order of the District Judge, dated 16 September 1938, the landlord applicants did not apply for re-delivery of possession of the property which had been given to Amba Prasad under the order of the Collector dated 27 June 1936 and he has all along been in possession of the shares in villages Rondha and Sherpur that he had purchased on 21 January 1936. In the year 1940 Amba Prasad filed an objection under Section 11, Encumbered Estates Act, with a prayer that the delay in filing the application may be condoned. The learned Special Judge on 6 March 1943 condoned the delay, after hear-ing the parties, on payment of Rs. 80 as damages within a week. It appears from the order-sheet that the amount was paid and the delay was, therefore, condoned.The objection was then heard on the merits and the learned Special Judge dismissed it on 27 April 1943. It is against that order that this appeal has been filed.