Mst. Basanti v. Mst. Mohar Kuer — 1955 DIGILAW 124 (ALL)

JUDGMENT Mukerji, J. - This is an application in revision by certain creditors arising out of Encumbered Estates Act proceedings. The revision was filed u/s 46(1) of the U.P. Encumbered Estates Act. 2. The facts briefly stated were these: One Digambar Singh made an application u/s 4 of the Encumbered Estates Act. u/s 8 of that Act he filed a written statement on the 20th of August, 1937. In that written statement he gave the particulars required of him. He also showed, in view of the provisions of Section 8(1)(c) of the Act, the nature and the extent of his property that was liable to attachment and sale u/s 60 of the Code of Civil Procedure. One of the items of the property shown by the debtor was a sum of money said to be due to him for arrears of profits for the years 1341 to 1344 Fasli from Srimati Basanti and Lala Budh Sen. It may be pointed out at this stage that Srimati Basanti and Lala Budh Sen were also creditors of the debtor Digambar Singh. It appears that Srimati Basanti and Lala Budh Sen took objections to this arrears of profits which were shown by the debtor as his assets. These creditors when they put in their claims u/s 10 of the Act, denied the existence of any claim in regard to arrears of profits. There was a publication of the two schedules in accordance with the provisions of Section 11(1) of the Encumbered Estates Act. It appears that in respect of these arrears no further dispute was raised by the creditor applicants before me. On the 12th of August, 1941, the learned Judge determined the matter, as he was bound to, u/s 11 of the Act and in that decision he said: It is proved that the property shown by the applicant in his written statement, as amended by publication dated 18th January, 1941, and also shown by Hanuman Prasad creditor, is the only property liable to sale u/s 60 of the Code of Civil Procedure. 3. There was, therefore, a determination by the Special Judge, however slipshod that decision may have been, in regard to the properties that were liable for the debts of the landlord applicant. On the 26th of October, 1941, a schedule of these properties was published in accordance with the rules. 4. 3. There was, therefore, a determination by the Special Judge, however slipshod that decision may have been, in regard to the properties that were liable for the debts of the landlord applicant. On the 26th of October, 1941, a schedule of these properties was published in accordance with the rules. 4. On the 3rd of December, 1943, an application was filed by Srimati Basanti and Lala Budh Sen for the amendment of the schedule, namely, the schedule that had been published after the decision u/s 11 had been made for deleting that item which related to the arrears of profits for 1341 to 1344 Fasli due from Srimati Basanti and Lala Budh Sen. The trial Judge dismissed this application on the same date on which it was made. The trial Judge said that the schedule having been prepared and published on the 26th of October, 1941, had become final as there had been no proper objections. An appeal was preferred to the Judge from the decision of the trial court by the present applicants. The learned Judge came to the conclusion--and I think rightly--that no appeal lay to him from the order of the trial court refusing to amend the schedule. The learned Judge, however, treated the appeal as a revision and allowed that revision in part by saying that the schedule would be amended to this extent that the profits which Were claimed in respect of year 1344 Fasli could not be claimable inasmuch as those profits had not accrued by the date when the claim in respect of them had been made on behalf of the landlord applicant. The learned Judge, therefore, in effect reduced the claim. 5. This revision has been filed against the order of the learned Judge and the contention of Mr. Ghatak appearing for the applicants is that the order of the court below could not be sustained. Mr. Ghatak argued this matter with his usual care and ability and he raised three points on which he claimed a reversal of the lower court's decision. 6. The first point taken by Mr. Ghatak was that a claim to profits could not be held to be property within the meaning of either Section 8 or 10 of the Encumbered Estates Act, and, therefore, his contention was that the court below had no jurisdiction to include this item in regard to profits in the schedule. 6. The first point taken by Mr. Ghatak was that a claim to profits could not be held to be property within the meaning of either Section 8 or 10 of the Encumbered Estates Act, and, therefore, his contention was that the court below had no jurisdiction to include this item in regard to profits in the schedule. I am unable to agree with this contention of Mr. Ghatak for, as I read the provisions of Section 8, I am of the opinion that property of this character can legitimately be brought within the ambit of Section 8. The provisions Section 8(1)(c) read as follows: The nature and extent of the landlord's property which is liable to attachment and sale u/s 60 of the Code of Civil Procedure, 1908, exclusive of his proprietary rights in land; and.... 7. u/s 60 of the CPC we find that "debt" due to a judgment-debtor was saleable in execution of a decree. The claim to profits which was made by the landlord applicant was undoubtedly in the nature of a debt due to him, and, therefore, in my judgment, it was saleable in execution of a decree u/s 60 of the Code of Civil Procedure. 8. The next contention raised by Mr. Ghatak was that it was not competent to a court seized of Encumbered Estates Act proceedings to determine any question in regard to profits. Mr. Ghatak's contention was that a claim to profits could only be determined by a revenue court under Sections 230 and 231 of the U.P. Tenancy Act and that since such claims could be determined under the U.P. Tenancy Act therefore, by virtue of Section 242 of the same Act no court other than a revenue court could in any manner determine anything in respect of arrears of profits. I do not think that Mr. Ghatak is right in this contention of his. Sections 230 and 231 of the U.P. Tenancy Act refer to the recovery of claims to profits. In effect they deal with suits for recovery. Section 242 prohibits a court other than a revenue court giving relief by way of suit to any claim in respect of which relief could be had in a revenue court in regard to matters which were exclusively within its jurisdiction. In effect they deal with suits for recovery. Section 242 prohibits a court other than a revenue court giving relief by way of suit to any claim in respect of which relief could be had in a revenue court in regard to matters which were exclusively within its jurisdiction. The claim which was made by the landlord applicant in this case was not a claim for the recovery of arrears of profits. It was shown as a debt due to him. The claim was denied by the creditors and it was within the special competence of the Special Judge under the Encumbered Estates Act to determine this particular issue between the landlord applicant and his creditors. I am, therefore, of the opinion that there was no bar by virtue of what is provided for in Section 242 of the U.P. Tenancy Act to the Special Judge determining this question. 9. The last argument which was raised by Mr. Ghatak was that the decree which has been made, even if it be assumed that the decision that was given by the learned Judge in respect of this question was a decree was made without adequate materials on the record and should be set aside in this revision. I must say that the decision on this question, which was made by the Special Judge on the 12th of Aug. 1941, was not very properly made. There is nothing in the judgment or on the record to show whether there was any clear evidence in respect to this matter or not but then that can be no ground for me to direct the amendment which was sought by the applicants before me in the court below in the exercise of my revisional jurisdiction. The order that was made by the Special Judge on the 12th of August, 1941, had the effect of a decree; that is specifically provided for by Section 11 of the Encumbered Estates Act and an appeal lay from such a decree. The creditors chose to be inactive and did not file an appeal within the time allowed by the law. They let two years pass before they moved in the matter. It is unfortunate but that does not confer on me the right to find a remedy for the applicants when the law gives them none. 10. The creditors chose to be inactive and did not file an appeal within the time allowed by the law. They let two years pass before they moved in the matter. It is unfortunate but that does not confer on me the right to find a remedy for the applicants when the law gives them none. 10. This revision was filed, as I stated earlier, under the provisions of Section 46 of the Encumbered Estates Act. I am of the opinion that no revision lay to this Court under that section after the applicants had once exhausted that remedy by approaching the court below. Section 46(1) clearly says that an order made in revision would be final. Therefore, there could not be a second revision under that provision to this Court when the first one failed in the court below. Mr. Ghatak contended that if revision was not maintainable u/s 46(1) of the Encumbered Estates Act, even then a revision u/s 115 of the CPC was open to him and he prayed that I may treat this revision under that provision of law. Indeed, Mr. Ghatak very fairly conceded that his revision u/s 46(1) of the Encumbered Estates Act was not maintainable and that he should have, originally, applied in revision u/s 115 of the Code of Civil Procedure. The remedy available to a party u/s 115 of the CPC is a very restricted remedy. It is certainly very much more restricted than the remedy provided for by Section 46(1) of the U.P. Encumbered Estates Act. In my view, the grounds on which this revision application was attempted to be sustained were not clearly such grounds as would fall within the purview of Section 115 of the Code of Civil Procedure. 11. In the result I have seen no force in this application in revision which I dismiss, but in the circumstances of the case I direct the parties to bear their own costs.