KHALIL AHMAD Vs. SHEIKH MOHD. ASKARI

JUDGEMENT

(1.) THIS is an appeal by the objectors, whose objection under Section 11 of the U. P. Encumbered Estates Act thereinafter 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 Section 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 Section 11 of the Act was published in the U. P. Gazette, specifying the property mentioned by the applicant under Section 8 of the Act. In due course, the Special Judge passed decrees under Section 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 debtor's house known as 'Pili 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 Section 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. 83 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 Section 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 Section 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 all 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 aforesaidpurchasers, 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 -clause (2) of Section 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 Section 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.

(3.) I have already shown above that under Section 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 Section 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 Section 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.