R C Mitter, J - (1.)The two respondents, Ram Kissen Das and Lachmidass, along with two other persons, Narrottam Das and Purushottamdas, carried on a business in co-partnership in Calcutta under the name and style of Narottamdas Gujrati. In the course of business transactions the said firm incurred a liability to the appellant, Madan Gopal Bagla, for a certain sum of money. The liability so incurred was for the price of goods supplied in Calcutta. In 1930 Madan Gopal Bagla brought a suit, being No. 481 of 1930, in the Original Side of this Court against the said firm to recover the money so due to him and got a decree on 22-8-1930 for Rs. 5696-15-3 with interest at 6 per cent, and costs. This decree would hereafter be referred to as the decree passed by this Court." On 4-12-1930 it was transmitted for execution to the District Judge of Benares. There the decree-holder, Madan Gopal Bagla, applied for execution. A sum of Rs. 1108-2-0 was realised by him in 1931 by the sale of some immovable properties situate in Benares. The District Judge, Benares, thereafter sent back the decree to the Court which had passed the decree, namely to the Original Side of this Court. The decree-holder thereafter had it transferred for execution to Howrah. On 16-11-1943 he filed his application for execution for the balance of the decree in the usual tabular form in the Second Court of the Subordinate Judge, Howrah. His prayer was for attachment and sale of a parcel of immovable property situate within the District of Howrah, belonging to two of the partners of the firm of Narottamdas Gujrati, namely Rarn Kissendas and Lachmidas. The application was registered in that Court on 1-12-1943 as Money Execution case No. 2 of 1943, and a notice under Order 21, Rule 22, Civil P.C., was served upon the judgment-debtors. On 12-4-1944, Lachmidas appeared and filed an objection under Section 47 of the Code. This objection was numbered Miscellaneous case No. 12 of 1944. He contended (a) that the decree passed by this Court was no longer in existence as the Special Judge of Benares had already passed a decree in respect of the debt due to Madan Gopal Bagla under the decree passed by this Court under the provisions of the U. P. Encumbered Estates Act (25 [xxv] of 1934 U. P., hereafter called the Act) and (b) that Madan Gopal Bagla having applied for execution of the decree passed by the Special Judge was precluded from executing the decree which he had obtained from this Court. The learned Subordinate Judge upheld the objections and by his order dated 22-5-1944 has dismissed the execution case. The decree-holder, Madan Gopal Bagla, has filed this appeal. He made the firm Narottamdas Guzrati, and the two partners Ramkissendas and Lachmidas parties-respondents to the appeal.
(2.)The following facts are either admitted by the parties or established by documentary evidence: (1) That Ramkissandas and Lachmidas are residents of Benares City, a town in the United Provinces of Agra and Oudh, that they have immovable properties in the District of Benares and are the proprietors of a mahal situate in that portions of the United Provinces in which the Encumbered Estates Act (25 [xxv] of 1934 U.P.) is in force; (a) That they are "landlords" within the meaning of that Act; (3) That on 29-3-1936 they applied to the Collector of Benares under Section 4 of the said Act for reliefs under the Act, that their application was admitted by the Collector who by an order passed under Section 6 of the Act transmitted the said application to the First Special Judge, Benares, appointed under the Act; (4) That in the written statement filed by the applicants, Ramkissendas and Lachmidas, before the Special judge under Section 8 of the Act they included the judgment debt due to Madan Gopal Bagla under the decree passed by this Court; (5) That in pursuance of a notice issued by the Special Judge under Section 9 of the Act and served on him, Madan Gopal Bagla appeared before the Special Judge and filed a written statement. This written statement is Ex. 2; (6) That the Special Judge separated the liability in respect of Madan Gopal Bagla's said judgment debt between the applying judgment-debtors Ramkissendas and Lachmidas, on the one hand and the non-applying judgment-debtors, Narottamdas and Purushot-tamdas on the other, in the professed exercise of the powers given to him by Sub-section (5) of Section 9 of the Act. He held that the applying judgment-debtors were liable to pay to Madan Gopal Bagla Rs. 1390-8-9 plus interest up to the date of his order amounting to Rs. 214-4-8 and Rupees 214-12-0 as costs and the non-applying judgment-debtors Rs. 3539-7-9 plus Rs. 390-15-0 as interest up to the date of his order. He further directed payment of future interest at 6 per cent, per annum; and (7) He passed a decree in favour of Madan Gopal Bagla and against the applying judgment-debtors, Ram Kissen Das and Lachmidas, for the said sum of Rs. 1390-8-9 plus interest and cost as mentioned in sub-para. 6 above. This decree was passed by him on 13 May 1941 under the provisions of Sub-section (7) of Section 14 of the Act.
(3.)No appeal or revision was taken against this decree under the provisions of chap. 6 of the Act. The contention of the respondents before us, which has been accepted by the learned Subordinate Judge, is that this decree of the Special Judge has by reason of the provisions of Section 18 of the Act, superseded the decree passed by this Court. That section runs as follows: Subject to the right of appeal or revision conferred in Chap. 6, the effect of a decree of a Special Judge under Sub-section (7) of Section 14 shall be to extinguish the previously existing rights, if any, of the claimant, together with all rights, if any, of mortgage or lien by which the same are secured, and where any decree is given by the Special Judge to substitute for those rights a right to recover the amount of the decree in the manner and to the extent hereinafter prescribed. As claims in respect of private debts both decreed and undecreed of the "landlord" who had applied for relief under Section 4 of the Act are required to be investigated into by the Special Judge ( Secs.9 and 15 of the Act) the effect of the decree passed by the Special Judge would be to extinguish the decree passed by this Court in favour of Madan Gopal Bagla, if the Special Judge had the power to pass an order under Sub-section (5) of Section 9 and the further power to pass a decree under Sub-section (7) of Section 14 of the Act in respect of the debt due to Madan Gopal Bagla, seeing that the debt had been incurred by the applicant landlords outside the United Provinces of Agra and Oudh and had been decreed, firstly, by a Court of competent jurisdiction situate outside that Province, and, secondly, by the Original Side of this Court.