- (1.) This is an appeal by a claimant Under Section 11, U. P. Encumbered Estates Act against an order rejecting his claim on the ground that it did not amount to a claim to "the property" mentioned in the landlord's application under that Act.
(2.) From the written claim presented by the appellant on 8th August 1944, before the Special Judge it appears that the landlord-applicant was the mutwalli of the property in question under a deed of wakf-alal-aulad dated 2nd Jane 1915, and that the appellant was a beneficiary under the same. Having learnt that this property had been wrongly included in the schedule of properties of the landlord, the appellant filed the claim giving rise to the present appeal seeking the exemption of that property from attachment and sale in satisfaction of the landlord's debts. The learned Special Judge, holding that the claim did not amount to a "claim to the property mentioned in such notice," rejected the same without going into the merits.
(3.) A preliminary objection was taken by the learned counsel for the respondents that no appeal lay against such an order. It was argued that, under Sub-section (4) of Section 11 of the Act, all orders passed under that section were to be deemed to be decrees of a civil Court of competent jurisdiction and that, as such, a regular first appeal only could be filed against the order of the Court below on payment of proper court-fees. On behalf of the appellant it was explained that a regular appeal could be filed only against an order 'under this section', that is, Section 11, and that this must be an order which has actually determined the question of the liability of the property covered by the claim to satisfy the landlord's debts, as mentioned in Sub-section (2) of the section. That Sub-section provides: "Any person having claim to the property mentioned in such notice shall, within a period of three months from the date of the publication of the notice in the Official Gazette, make an application to the special Judge stating his claim and the Special Judge shall determine whether the property specified in the claim or any part thereof, is liable to attachment, sale or mortgage in satisfaction of the debts of the applicant." For an order Under Section 11 of the Act, which is to be deemed to be a decree, it is essential, not only as required by the definition of a decree but also by the language of Sub-section (2) that it must embrace a determination of the basic question whether the property is or is not liable to be attached and sold in satisfaction of the landlord's debts. In the present case, there was no such determination at all, as the claim was thrown out at the very threshold on the view that it did not amount to a 'claim to the property' within the meaning of Sub-section (2) of Section 11 of the Act. I think this affords a complete answer to the preliminary objection which I, therefore, disallow.;