Full Judgment
Mulla, J.
1. These are two connected applications in revision which arise out of a suit for partition. The applicant Lala Ramman Lal is the defendant in the suit. The opposite party Lala Babu Ram who is the plaintiff in the suit prayed for the apportionment of certain family debts along with the partition of joint family property. The present applicant resisted this part of the claim on the ground that the plaintiff alone was responsible for discharging all the debts. This plea was allowed to prevail by the trial Court and a preliminary decree for partition was passed on 10th July 1936. The plaintiff appealed from that decree on 7th August 1936 and while that appeal was pending the present applicant Lala Ramman Lal instituted a proceeding under Section 4, Encumbered Estates Act, on 20th October 1936 and on the same date the Collector passed an order under Section 6 of that Act. The plaintiff's appeal was decreed by the learned District Judge on 5th March 1937, with the result that the trial Court's finding in respect of the present applicant's liability for the debts was reversed and the case was remanded to the trial Court for determining the total amount of the debts and the present applicant's share therein. It may be noted here that it was open to the learned District Judge to have asked the parties to produce evidence before him to enable him to decide the question of the total amount of the debts and the share of the present applicant therein. He however remanded the case with the direction mentioned above. From that order of remand the present applicant preferred an appeal to this Court which was eventually dismissed on 23rd August 1938. While the appeal was pending in this Court the trial Court could not start any proceeding in accordance with the order of remand passed by the learned District Judge. In the meantime the record of the case was sent for by the special Judge in connexion with the proceeding under the Encumbered Estates Act.
2. On 31st August 1939 the plaintiff made an application to the trial Court inviting its attention to the decision of this Court and asking it to proceed with the suit as directed by the order of remand passed by the learned District Judge. Upon this application the trial Court sent for the record and started a proceeding in the course of which it appointed the amin of the Court as a commissioner for preparing quras and for making a detailed report on all the points involved in the case. One of the present applications in revision is directed against the commencement of the proceeding in accordance with the order of remand and the other against the appointment of the amin for the purposes mentioned above. It has been strenuously urged on behalf of the applicant that the learned Munsif had no jurisdiction to start any proceeding inasmuch as Section 7, Encumbered Estates Act, [Was a bar. It is conceded that if the (learned District Judge had himself asked the parties to produce evidence before him the applicant could not have raised any objection under Section 7, Encumbered Estates Act. It is contended, however, that the commencement of the proceeding by the learned Munsif infringes the mandatory provisions of Section 7. It is quite obvious that the proceeding started by the learned Munsif cannot possibly be said to be a proceeding 'pending at the date of the said lorder,' that is, at the date of the order passed by the Collector under Section 4, Encumbered Estates Act, upon the present applicant's petition under Section 4, Encumbered Estates Act. This point was also conceded by the learned Counsel for the applicant so that it is clear that Clause (a) of Section 7(1) cannot possibly apply to the present case. It is urged, however, that the case falls within the purview of Clause (b) of Section 7(1) which runs as follows:
No fresh suit or other proceedings other than an appeal, review or revision against a decree or order, or a process for ejectment for arrears of rent shall, except as hereinafter provided, be instituted in any Civil or Revenue Court in the United Provinces in respect of any debts incurred before the passing of the said order but if for any reason whatsoever such a suit or proceeding has been instituted, it shall be deemed to be a proceeding pending at the date of the said order within meaning of Clause (a).
3. It is strenuously argued that the proceeding commenced by the learned Munsif upon an application made by the plaintiff in the circumstances stated above was a proceeding 'instituted' as contemplated by Clause (b) of Section 7(1). This contention has in my judgment no force and it cannot therefore be allowed to prevail. The application made by the plaintiff only drew the attention of the trial Court to what was its obvious duty, namely, to carry out the directions given by the learned District Judge in the order of remand. It cannot in any sense be said to be a proceeding 'instituted in respect of any debts incurred' within the meaning of Clause (b) of Section 7(1). Section 7, Encumbered Estates Act, is restrictive of the ordinary rights given to a litigant by the law and its provisions must be strictly construed. The present case does not strictly fall within-the purview of Clause (b) of Section 7(1) as urged by learned Counsel for the applicant and I cannot therefore hold that the proceeding started by the learned Munsif in order to carry out the directions given by the learned District Judge in his order of remand in the circumstances stated above is barred by Section 7, Encumbered Estates Act. The application in revision which is directed against the commencement of that proceeding must therefore fail and is accordingly dismissed. As regards the other application which is directed against the order passed by the trial Court appointing an amin to prepare quras and to make a detailed report on all the points involved in the case, I it is enough to say that it is not a 'case decided' within the meaning of Section 115, Civil P.C. and consequently there is no jurisdiction to interfere in revision. It may be a wrong or improper order but the applicant has his remedy against that order by way of appeal when the Munsif prepares his decree. The second application in revision is also consequently dismissed. The applicant shall bear the costs of the opposite party.