- (1.) This appeal is before us on a certificate granted by the High Court of Judicature at Allahabad under S. l10 Civil P. C. and the only point it raises is whether the appeal preferred by the appellant to the High Court was imperfectly constituted inasmuch as all the creditors were not impleaded as parties to that appeal.
(2.) The facts are that on 28-10-1936 Rama Krishna Narain and others submitted an application under S. 4. U P. Encumbered Estates Act, 1934 to the sub-divisional officer, Tilhar, Shahjahanpur, proving that the provisions of the said Act be applied to them. This application was eventually transferred by the sub-divisional officer to the court of the special judge, first grade, Shahjahanpur. The landlords on 26-8-1938 submitted a written statement to the special judge under S. 8 of the Act and therein stated 'inter alia' that they had a proprietary interest to the extent of ten annas share in 52 items of taluqdari Villages which formed part of taluka Bharawan. A notice of this application was published as required by S. 11(1) of the Act in the U. P. Gazette dated 13-5-1939. On 30-11-1939, Raja Dev Singh, who Subsequently became a ward of the Court of Wards, filed a claim petition under S. 11(2) of the Act and alleged therein that he was the proprietor of 6 1/2 pies share in 47 items of property mentioned in schedule (A) of the landlords written Statement. This claim was disallowed by the Special judge by an order dated 24-8-1940, and it was held that Raja Dev Singh was not the owner of the property claimed by him in his objection petition. The Deputy Commissioner of Hardoi who is the Court of Wards of Bharawan estate filed an appeal against this decision of the special judge to the High Court. All the applicant-landlords were impleaded as respondents in the appeal along with the Unao Commercial Bank Ltd., one of the creditors who had taken part in the proceedings before the special judge at that stage. It does not appear from the record that the other creditors had either filed written Statements under section 10 or had made any allegation that the landlords had secreted any property. Their names were not mentioned in the memorandum of parties annexed to the memo of costs, and in these circumstances they were not impleaded as respondents in the appeal. Subsequently the appellant made an application for impleading them as respondents in the appeal and Prayed that he be given the benefit of S. 5, Limitation Act. This application was rejected, and eventually the appeal was dismissed on the ground that it was defective and could not be entertained in the absence of all the creditors as respondents in the appeal. The cross-objection filed by the Unao Commercial Bank with respect to costs was allowed.
(3.) The appellant on 21-11-1944 filed a petition for leave to appeal to His Majesty in Council. It was alleged in this application that the valuation of the subject-matter of the appeal in the trial court, in the High Court. and before His Majesty in Council was over Rs. 10,000/- and that though in the result the judgment and decree of the High Court affirmed the judgment and decree of the trial court, a substantial question of law affecting not only the parties but of general interest was involved. The High Court without deciding whether the appeal raised a substantial question of law granted leave to the appellant under S. 110, Civil P. C. on the ground that the judgment of the High Court being one of variance, and the value of the subject matter in dispute in the trial court as well as in the appeal to His Majesty in Council being over Rs. 10,000/-, the case fulfilled the requirements of that section.;