Grover, J. - (1.) These appeals by special leave from a judgment of the Allahabad High Court arise out of proceedings which started as far back as the year 1936.
(2.) The relevant facts may be stated. The appellant and his two brothers Shrish Chandra Pandey and Shrikar Pandy were members of a joint Hindu family. In 1936 there was a disruption of the joint family but the properties were not divided by metes and bounds. On September 30, 1936 the two brothers of the appellant made an application under Section 4 of the U. P. Encumbered Estates Act 1934, hereinafter called the Act, praying that its provisions by applied to them. This application was forwarded by the Collector to the Special Judge under Section 6 of the Act. The applicants filed what is called a written statement under Section 8 of the Act giving particulars of the debts which were payable by the quondam joint family. As the appellant was not an applicant in these proceedings he was made a proforma defendant. On May 7, 1937 Ramdev Sahu whose name was substituted by the first respondent Shiv Narain Sahu in C. A. 1184/66 instituted a suit against the appellant for recovery of a sum of Rs. 22,000/- odd out of a debt which was said to be due from the three brothers in the sum of Rs. 67,000/- odd. This suit was dismissed on August 26, 1937 by the trial court. On September 12, 1938 another creditor Motilal Bandhu Sahu who is respondent No. 1 in C. A. 1183/66 instituted a suit being suit No. 12 of 1938 for recovery of Rs. 13,000/-, on the allegation that this amount was due from the appellant as his 1/3rd share of the debt due from the three brothers on the basis of Sarkhatbahi The appellant filed a written statement in the suit raising various defences.
(3.) After the dismissal of the first suit filed by Ramdev Sahu the matter was taken to the High Court and as important questions were involved they were referred to a full bench whose judgment is reported in Ramdev v. Sri Sadaitan Pande. (1) The Full Bench in view of certain amendments made in Section 9 of the Act by Act 11 of 1939 made the following order : "The record will be returned to the Court of the learned Civil Judge with the direction that the plaint be treated as an application under Section 11 of Act 11 of 1939. This application will be disposed of according to law after the amount due by the defendant has been determined by the Civil Judge in the proceedings under the Encumbered Estates Act". On December 14, 1943 the Special Judge after holding proceedings under the Act passed orders granting decrees against the appellant as well as brothers. One decree against the appellant was for 1/3 of Rs. 37687-13-6 and the other was for 1/3 of Rs. 22,645/- together with interest at the rate of 3%. It was further directed that a copy of the judgment should be placed on the file of the civil suit in each case which had been stayed and was pending in the court of Civil Judge, Mirzapur. It may be mentioned that subsequently Ramdev Sahu assigned his interest in favour of Shiv Narain Sahu and the name of the latter was substituted in place of the former by an order dated May 12, 1949.;