FIRM NARAIN DAS DEVI PRASAD Vs. SRI LAL

JUDGEMENT

(1.) This is an appeal by firm Narain Das Devi Prasad in an Encumbered Estates Act matter.

(2.) The facts which have led to this appeal are these : Sri Lal and others filed an application under the Encumbered Estates Act, on 30 March 193G. This was transferred to the Special Judge, second grade, and was numbered as 402 of 1936. In that application, the appellant firm Narain Das Debi Prasad, was not mentioned as one of the creditors. Consequently, no notice was sent to the appellants to file their claim and the appellants name did not appear in the various publications that were made under the Act. The Special Judge finally decided the matter on 30 November 1938. On 7 February 1938, the appellants had filed their claim, but this claim was dismissed by the Special Judge on 30 November 1938 as time barred because under Section 9, as it-then stood, the claim had to be made within three months of the publication in the Gazette and if that was not done, on cause shown, within a further period of two months. Thus, five months from the publication in the Gazette constituted the maximum period under the Act, as it then stood, for making claims. As this claim has apparently been made more than five months after that date, it was rejected as time barred. In September 1939, the Encumbered Estates Act was amended and a provision was made to the effect that claims could be presented at any time before the date on which the Special Judge sent the decrees to the Collector for execution or before 30th November 1939, whichever was later. The appellants, therefore, filed their claim again on 16 November 1939, on the basis of this amendment. They prayed that the claim be accepted and decree passed in their favour and the previous order might be reviewed. This claim was rejected by the Special Judge on 8 May 1941. The appellants went in appeal which was dismissed by the District Judge of Parrukhabad. They have now come up in second appeal to this Court.

(3.) Three preliminary objections have been taken to the hearing of this second appeal. In the first place, it is urged that no appeal lies at all as it is against an order refusing to review the previous order. In the second place, it is urged that no second appeal lies to this Court. Lastly, it is urged that the appeal is not maintainable as all the creditors have not been made parties.