CHHITAR Vs. JAI SINGH

JUDGEMENT

(1.) This is an application in revision under Section 115, Civil P.C. It arises out of a proceeding under the Encumbered Estates Act. The applicant Chhitar, who is a minor, brought a suit on the basis of a mortgage against the opposite party, Jai Singh, and obtained a preliminary decree on 29 January 1935 which was eventually made final on 30 November 1935. His mother Mt. Bhudei acted as his guardian for that suit. Some time after the passing of the preliminary decree but before the preparation of the final decree the opposite party, Jai Singh, along with some other members of his family made an application under Section 4, Encumbered Estates Act, on 10 September 1935. It is noticeable that this fact was not brought to the notice of the Court which had passed the preliminary decree and was proceeding to prepare the final decree. It appears that the opposite party, Jai Singh, did not put in his appearance in the course of the proceeding for the preparation of the final decree. That absence may well have been intentional, for if he had appeared in the course of that proceeding and brought it to the notice of the Court that he had made an application under Section 4, Encumbered Estates Act, which had been sent by the Collector in due course to a special Judge the proceeding would have been stayed at once under Section 7, Encumbered Estates Act, and the applicant would have had notice of the application made by the opposite party under the Encumbered Estates Act and would have consequently been vigilant to prefer his claim before the special Judge. It has been suggested on behalf of the applicant and I think not without some force that the opposite party, Jai Singh, made his application under Section 4, Encumbered Estates Act, quietly with the deliberate intention of keeping that fact from the knowledge of the present applicant and later on got a notice of his application published in the Government Gazette in the name of Mt. Bhagwan Dei and not of Mt. Bhudei, the name clearly mentioned in the preliminary and the final decrees referred to above. It must also be mentioned in this connexion as a very significant fact that the present applicant was the only creditor mentioned in the application under Section 4, Encumbered Estates Act. The special Judge ordered a notice to be published in due course in the Government Gazette in the name of Mt. Bhagwan Dei in accordance with the particulars supplied by the opposite party Jai Singh. That notice was published on 22 February, 1936.

(2.) It appears that in accordance with Section 9(2), Encumbered Estates Act, the Special Judge also sent a copy of the notice by registered post to Mt. Bhagwan Dei. On behalf of the applicant it is alleged that no such notice was actually tendered to Mt. Bhudei, the mother of the applicant who had acted as his guardian in the mortgage suit. Both the Courts below have however found that Mt. Bhudei refused to accept delivery of the registered notice presumably on the ground that the person to whom the notice was addressed was Mt. Bhagwan Dei. The result of this proceeding was that no written statement was filed on behalf of the applicant before the Special Judge within three months from the date of the publication of the notice in the Government Gazette as required by Section 9(1) and as the applicant was the only creditor the proceeding came to an end and his debt was taken under Section 13 of the Act to have been duly discharged. Now the applicant's case is that he had no knowledge of all this and when his uncle Shadi Earn made a demand on 2 May, 1937 from the opposite party, Jai Singh, for payment of the decretal amount he was told that the debt had been discharged in consequence of an application having been made under Section 4, Encumbered Estates Act, and no written statement of the claim having been filed within the time allowed by law. There upon the applicant under the guardianship of his uncle Shadi Earn put in a petition on 3 May 1937 along with a written statement of his claim based upon the final decree asking the Special Judge to condone the delay and to permit him to put in his claim. It was definitely alleged in that petition that the opposite party had been guilty of fraud and the applicant had been prevented by that fraud from having any knowledge of the proceeding under the Encumbered Estates Act. The Special Judge rejected the petition holding that he had no power to extend the limitation beyond the period of five months provided for in Sub-section (3), Section 9, Encumbered Estates Act. That view has been upheld by the learned District Judge of Bulandshahr in appeal, hence the present application in revision.

(3.) The argument on behalf of the applicant is that the whole proceeding before the Special Judge subsequent to the opposite party's application under Section 4, Encumbered Act, was void because no step was taken by the Court to appoint a proper guardian to represent the present applicant who is admittedly a minor. It is pointed out that Rule 6 of the Rules made under the Encumbered Estates Act provides that: Proceedings under this Act shall be governed by the provisions of the Civil Procedure Code of 1908 for the time being in force so far as they are applicable and not inconsistent with the provisions of the Act and of these Rules.