Brahmdeo Prasad Tewari vs Makhan Tewari and Others

Verma, J.—Respondents 4 to 11 applied to the Collector u/s 4 of the U.P. Encumbered Estates Act, and the application was in due course forwarded to the Special Judge under the provisions of Section 6. The landlord-applicants filed their written statement u/s 8, and in the schedule of debts they mentioned a mortgage decree, No. 299 of 1925 (civil Judge''s Court, Gorakhpur), Makhan Tewari and Ors. v. Binda Prasad Tewari and Ors. The appellant, Brahmdeo Prasad Tewari, is also a judgment-debtor under that decree. Some time later, the appellant filed an application in the Court of the special Judge admitting that he was liable to the extent of half under the decree mentioned above and prayed that the amount of the debt payable by him be determined by the Court under the provisions of Section 9(5)(a) of the Act, The amount due under the decree in question at the time of the filing of the written statement u/s 8 was Rs. 34,594-10-11. The learned special Judge has acceded to the request made by the appellant and has determined his liability. The amount found due by the learned Judge on the date on which he delivered judgment came to Rs. 18,354-5-6. The appellant''s contention is not that this figure does not represent a half of the amount which was due under the decree on 15th September 1938 when judgment was delivered. His contention is that he should also have been given the benefits which are available to a "landlord" who has applied u/s 4 and that the amount payable by him should have been determined in accordance with the provisions of the Act. This contention is clearly without force. The benefits provided for by the Encumbered Estates Act can be given only to a person who is entitled to make an application u/s 4 of the Act and who does make such an application. The appellant is not such a person. The appeal is without force and is dismissed with costs.