- (1.) THIS is an appeal by the objectors, whose objection under Sec. 11 of the U.P. Encumbered Estates Act (hereinafter referred to as the Act) was dismissed by the Special Judge, First Grade, Saharanpur by an order dated 3rd December, 1951. Mohammad Askari (respondent No. 1) had made an application under Sec. 4 of the said Act, which, on being transferred to the Special Judge, was registered as Suit No. 35 of 1936. The written statement of the applicant and claims of the creditors were duly filed under Sections 8 and 9 of the Act respectively. Ultimately on 8-1-1938 a notice under Sec. 11 of the Act was published in the U.P. Gazette, specifying the property mentioned by the applicant under Sec. 8 of the Act. In due course, the Special Judge passed decrees under Sec. 14 of the Act, and transmitted them to the Collector of Saharanpur for execution in accordance with the provisions of the Act. Consequently the S. D. O. Roorke started liquidation proceedings. On 21-6-48 both the appellants filed an objection before the S. D. O. saying that a portion of the debtors house known as Pill Kothi was not liable to be sold in satisfaction of the debts of the landlord, inasmuch as there existed a pukka mosque in the north-western corner of the compound of this Kothi. Thereafter the S. D. O. issued a sale proclamation fixing 26-11-48 for auction sale of Pill Kothi including the mosque in question. However, in the meantime, the landlord obtained permission of the S. D. O. to sell that property by private negotiations. The S. D. O. allowed the requisite permission, provided the entire sale consideration was deposited in his court for payment to the creditors. In this connection it may be mentioned that under Sec. 24(4) of the Act, the Collector may exercise all the powers of a Civil Court for the execution of a decree. Under Order XXI, R. 33 C.P.C. the execution court may postpone the sale of the property and allow the judgment-debtor to effect a private sale thereof. Thus the S. D. O was fully competent to allow the landlord to make a private sale of the Fill Kothi under the provisions of Sec. 24 of the Act itself. Accordingly the debtor sold the Kothi in question along with the mosque on 30th October, 1948, to Smt. Mansa Devi and Smt. Rajwanti Devi, who are respondents Nos. 8 and 9 to this appeal. However, on 23rd December, 1948, the objectors filed a similar objection before the Special Judge under Sec. 11 of the Act saying that a portion of the Kothi comprising of the mosque was not liable to be sold for the satisfaction of the debts of the landlord, on the ground that it was a public mosque and alt the Muslims, specially those residing in the locality, had a right to say their prayers in it. Two of the creditors as well as the aforesaid purchasers, namely, Smt. Mansa Devi and Rajwanti Devi contested the aforesaid objection mainly on two grounds, viz. (1) that the objection was barred by limitation prescribed under sub-cl. (2) of Sec. 11 of the Act, and (2) that the mosque in question was a private one belonging to the owner of the Pili Kothi, to which the Muslims at large had no access or right to offer prayers therein, it was, therefore, contended that the owner had full right to sell it away to the ladies aforesaid.
(2.) THE learned Special Judge found that the claim of the objectors was barred by the limitation prescribed under Sec. 11(2) of the Act. It was further held that the mosque in question was not a public mosque but was the private place for worship by the owners of the Kothi. Accordingly the objection of the appellants was dismissed; hence this appeal. Section 11(2) of the Act, as it stood at the relevant time, reads as under : "Any person having any 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 : Provided that if the claimant satisfied the Special Judge that he had sufficient cause for not making his application within the above period, the Special Judge may receive such application, if presented, at any time before such property is transferred to any person under the provisions of Secs. 24 etc........."
(3.) I have already shown above that under Sec. 24(4) of the Act the Collector was fully competent to allow the landlord to make a private sale of his house in the liquidation proceedings. The sale dated 30-10-1948 in favour of Smt. Mansa Devi and Smt. Rajwanti Devi respondents was well within the meaning of Sec. 24 of the Act, with the result that even if the Special Judge wanted to condone the delay on the part of the appellants in raising their objection under Sec. 11(2) of the Act, the same could not have been granted by the Special Judge after the property had been transferred to the two ladies aforesaid by virtue of the sale deed executed by the landlord on 30-10-1948.;