# Habub Mohammad v. Thi Slate of Hyderabad - **Citation:** [1954] 1 S.C.R. 506 - **Court:** Supreme Court of India - **Decided:** 1954 - **Case number:** Civil Appeal No. 59 of 1951 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/habub-mohammad-v-thi-slate-of-hyderabad-308 - **Pages:** 18 ## Headnote 1953 Habub Mohammad v. Thi Slate of Hyderabad. 1953 Oct. SJ 5CX5 SUPREME COURT REPORTS [1954] the court was fully seized of the case and by then the sanction had been given. Appeal allowed. Conviction set aside. Agent for the appellant: Rajinder Narain. Agent for the respondent : G. H. Rajadhyaksha. DEPUTY COMMISSIONER, HARDOI ti. RAMA KRISHNA NARAIN AND OTHERS. lMEHR CHAND MAHAJAN, MuKHERJEA and JAGANNADHADAS JJ.] U. P. Encumbered Estates Act, 1934, s. 11 (2)-Proceedings under s. 11(2)-Appeal from order rejecting claim-Creditors who did not take active steps-Whether necessary parties. Creditors who did not take an active part in the proceedings are not necessary parties to an appeal from an order rejecting a claim made in a proceeding under section 11 (2) of the U. P. Encumbered Estates Act, 1934. The technical rules of the Civil Procedure Code regarding the impleading of parties should not be applied to such proceedings. The matter should be Yiewed in a more liberal way, regard being always had to the fact that there is no collusion betv.reen the debtor and the claimant. Rameshwar v. Ajodhia Prasad (A.I.R. 1941 Oudh 580), Chaudhri Bishunath Prasad v. Sarju Saran Tewar (A.I.R. 1942 Oudh 16), Lakshmi Narain v. Satgurnath (A.LR. 1942 Oudh 339) and Benam Bank Ltd. v. Bhagwandas (A.LR. 1947 All. 18) overruled. APPELLATE JuR1smcTION: Civil Appeal No. 59 of 1951. Appeal from the Judgment and Decree dated the 22nd August, 1944, of the High Court of Judicature at Allahabad (Verma and Hamilton JJ.) in First Appeal No. 345 of 1940 arising out of the Judgment and Decree dated the 24th August, 1940, of the Court of the Special Judge, 1st Grade of Shahjahanpur in Miscellaneous Case No. 52 of 1940 and Original Suit No. 2 of 1938. Chaudhry Niamutuallah ( Gopalji Mehrotra, with him) for the appellant. Onkar Nath Srivastava for respondent No. 5. 1953. October 8. The Judgment of the Court was delivered by MAHAJAN J. • SUPREME COURT REPORTS 507 MAHAJAN J.-This appeal is before us on a certifi- <:ate granted by the High Court of Judicature at Allahabad under section 110 of the Code of Civil Procedure and the only point it raises is whether the appeal preferred by the appellant to the High Court was imperfectly constituted, inasmuch as all the creditors were not impleaded as parties to that appeal. The facts are that on the 28th October, 1936, Rama Krishna Narain and others submitted an application under section 4 of the U. P. Encumbered Estates Act, 1934, to the sub-divisional officer, Tilhar, Shahjahanpur, praying that the provisions of the said Act be applied to them. This application was eventually transferred by the sub-divisional officer to the court of the special judge, first grade, Shahjahanpur. The landlords on 26th August, 1938, submitted a written statement to the special judge under section 8 of the Act and therein stated inter alia that they had a proprietary interest to the extent' of ten annas share in 52 items of taluqdari villages which formed part of taluka 'Bharawan. A notice of this application was published as required by section 11(1) of the Act in the U.P. ·Gazette dated 13th May, 1939. On 30th November, 1939, Raja Dev Singh, who subsequently became a ward of the Court of Wards, filed a claim petition under section 11 (2) of the Act and alleged therein that 'he was the proprietor of 6! pies share in 47 items of property mentioned in schedule (A) of the landlords' written statement. This claim was disallowed by the ·special judge by an order dated 24th August, 1940, and it was held that Raja Dev Singh was not the ·owner of the property claimed by him in his objection petition. The Deputy Commissioner of Hardoi who is the Court of Wards of Bharawan estate filed an appeal :against this decision of the special judge to the High ·Court. All the applicant-landlords were impleaded as respondents in the appeal along with the U nao Commercial Bank Ltd., one of the creditors who had taken part in the proceedings before the special j ## Text _Characters 0–39,667 of 40,535. This is a partial read: ask again with offset=39667 for what follows._ 1953 Habub Mohammad v. Thi Slate of Hyderabad. 1953 Oct. SJ 5CX5 SUPREME COURT REPORTS [1954] the court was fully seized of the case and by then the sanction had been given. Appeal allowed. Conviction set aside. Agent for the appellant: Rajinder Narain. Agent for the respondent : G. H. Rajadhyaksha. DEPUTY COMMISSIONER, HARDOI ti. RAMA KRISHNA NARAIN AND OTHERS. lMEHR CHAND MAHAJAN, MuKHERJEA and JAGANNADHADAS JJ.] U. P. Encumbered Estates Act, 1934, s. 11 (2)-Proceedings under s. 11(2)-Appeal from order rejecting claim-Creditors who did not take active steps-Whether necessary parties. Creditors who did not take an active part in the proceedings are not necessary parties to an appeal from an order rejecting a claim made in a proceeding under section 11 (2) of the U. P. Encumbered Estates Act, 1934. The technical rules of the Civil Procedure Code regarding the impleading of parties should not be applied to such proceedings. The matter should be Yiewed in a more liberal way, regard being always had to the fact that there is no collusion betv.reen the debtor and the claimant. Rameshwar v. Ajodhia Prasad (A.I.R. 1941 Oudh 580), Chaudhri Bishunath Prasad v. Sarju Saran Tewar (A.I.R. 1942 Oudh 16), Lakshmi Narain v. Satgurnath (A.LR. 1942 Oudh 339) and Benam Bank Ltd. v. Bhagwandas (A.LR. 1947 All. 18) overruled. APPELLATE JuR1smcTION: Civil Appeal No. 59 of 1951. Appeal from the Judgment and Decree dated the 22nd August, 1944, of the High Court of Judicature at Allahabad (Verma and Hamilton JJ.) in First Appeal No. 345 of 1940 arising out of the Judgment and Decree dated the 24th August, 1940, of the Court of the Special Judge, 1st Grade of Shahjahanpur in Miscellaneous Case No. 52 of 1940 and Original Suit No. 2 of 1938. Chaudhry Niamutuallah ( Gopalji Mehrotra, with him) for the appellant. Onkar Nath Srivastava for respondent No. 5. 1953. October 8. The Judgment of the Court was delivered by MAHAJAN J. • SUPREME COURT REPORTS 507 MAHAJAN J.-This appeal is before us on a certifi- <:ate granted by the High Court of Judicature at Allahabad under section 110 of the Code of Civil Procedure and the only point it raises is whether the appeal preferred by the appellant to the High Court was imperfectly constituted, inasmuch as all the creditors were not impleaded as parties to that appeal. The facts are that on the 28th October, 1936, Rama Krishna Narain and others submitted an application under section 4 of the U. P. Encumbered Estates Act, 1934, to the sub-divisional officer, Tilhar, Shahjahanpur, praying that the provisions of the said Act be applied to them. This application was eventually transferred by the sub-divisional officer to the court of the special judge, first grade, Shahjahanpur. The landlords on 26th August, 1938, submitted a written statement to the special judge under section 8 of the Act and therein stated inter alia that they had a proprietary interest to the extent' of ten annas share in 52 items of taluqdari villages which formed part of taluka 'Bharawan. A notice of this application was published as required by section 11(1) of the Act in the U.P. ·Gazette dated 13th May, 1939. On 30th November, 1939, Raja Dev Singh, who subsequently became a ward of the Court of Wards, filed a claim petition under section 11 (2) of the Act and alleged therein that 'he was the proprietor of 6! pies share in 47 items of property mentioned in schedule (A) of the landlords' written statement. This claim was disallowed by the ·special judge by an order dated 24th August, 1940, and it was held that Raja Dev Singh was not the ·owner of the property claimed by him in his objection petition. The Deputy Commissioner of Hardoi who is the Court of Wards of Bharawan estate filed an appeal :against this decision of the special judge to the High ·Court. All the applicant-landlords were impleaded as respondents in the appeal along with the U nao Commercial Bank Ltd., one of the creditors who had taken part in the proceedings before the special judge at that stage. It does not appear from the record that the other creditors had either filed written statements 1953 bejnit) Commis.riontr, Hardoi v. Ramd Krishna Narain and Others. Mahajan J. 1953 - Deputy Commissioner, Hardoi v. Rama Krishna Narain and ~others. 'Mahajan]. 508 SUPREME COURT REPORTS (1954} under section 10 or had made any allegation that the landlords had secreted any property. Their n~mes. · • were not mentioned in the memorandum of parties annexed to the memo of costs, and in these circumstances they were not impleaded as respondents in the appeal. Subsequently the appellant made an application for impleading them as respondents in the appeal and prayed that he be given the benefit. of section .5 of the Indian Limitation Act. This application was rejected, and eventually the appeal was dismissed on the ground that it was defective and could not be entertained in the absence of all the .creditors as respondents in the appeal. The cross-objection filed by the U nao Commercial Bank with respect to costs wa~ allowed. The appellant on 21st November, 1944, filed a petition for leave to appeal to His Majesty in Council. It was alleged in this application that the valuation of the subject-matter of the appeal in the trial court, in the High Court and before His Majesty in Council was over Rs. 10,000 and that though in the result the judgment and decree of the High Court affirmed the judgment and decree of the trial court, a substantial question of law affecting not only the parties but of general interest was involved. The High Court without deciding whether the appeal raised a substantial question of law granted leave to the appellant under section llO of the Code of Civil Procedure on the ground that the judgment of the High Court being one of variance, and the value of the subject-matter in dispute in the trial court as well as in the appeal t<> His Majesty in Council being over Rs. 10,000, the case fulfilled the requirements of that section. Mr. Srivastava who represented the debtors-landlords before us raised a preliminary objection that the certificate under section llO of the Civil Procedure Code was defective and the appeal was thus incompetent and could not be entertained by us. He contended that the only variation made by the High Court in the judgment of the trial judge was in respect of costs and such a variation in the matter of costs only did not make the decree a decree of variance, and that S.C.R. SUPREME COURT REPORTS 509 being so, the ground on which the High Court had granted the certificate was erroneous and the certificate being defective this appeal could not be heard. In our opinion, this contention is without force. It is no doubt true that costs are not taken into consideration and are treated as extraneous to the subjectmatter of a suit, and variation in the matter of costs does not make the decree of the appellate court a decree of variance ; but as already stated, the appellant did not pray for the .certificate on that ground. He had expressly alleged that the decree being one of aflirmance he was entitled to a certificate, because the subject of the suit as well as of the appeal was a sum of over Rs. 10,000 and the case involved a substantial <}Uestion of law. It is obvious that the ground on which the appeal was dismissed by the High Court raises a question of law of importance to the parties and that being so, on that ground alone the appellant was entitled to a certificate under section llO, Civil Procedure Code. The certificate therefore is good, though the ground on which it was granted is erroneous. It is always open to an appellant to support the certificate on grounds other than those on which it has been actually ordered to be given. The preliminary objection therefore fails. In order to determine whether the creditors are necessary parties in proceedings under chapters 3 and 4 of the U.P. Encumbered Estates Act, 1934, it is necessary to refer to the relevant provisions of the Act. The law was enacted for giving relief to encumbered estates in U. P. Section 4 provides that any landlord, who is subject to or whose immoveable prnperty or any part thereof is encumbered with private debts, may make an application in writing to the Collector of the district, stating the amount of such private debts and also of his public debts both decreed and undecreed and requesting that the provisions of this Act•be applied to him. The section gives an option to the landlord who is subject to private debts to make an application for obtaining relief under the provisions of the Act. The Collector then transmits the applica- . tion to the special judge appointed un4er the Act. 1953 Depuly Commissioner, Hardoi v. Rama Krishna Narain and Others. .Mahajan J. 1953 Deputy Commissioner, Hardoi v. Rama Krishna Narain and Others. Mahajan]. 510 SUPREME COURT REPORTS 119541 The direct consequence of the acceptance of such an application by the collector is that the creditors are deprived of their rights of proceeding against such a landlord in civil or revenue courts in respect of their debts and all attachments made in execution of decrees become null and void and no process in execution can issue after that date. The provisions of the Act are clearly detrimental to the contractual rights of the creditors and to their remedies in civil law and such a statute can by no stretch of imagination be described to have been enacted for the benefit of creditors. Section 8 of the Act confers power on the special judge of calling upon the applicant to submit to him within a period to be fixed by him in this behalf, a written statement containing full particulars respecting the public and private debts to which he is subject or with which his immoveable property is encumbered ; of the nature and extent of his proprietary rights in land ; of the r;ature and extent of his property which is liable to attachment and sale ; and lastly, of the names and addresses of the creditors, so far as can be ascertained by him. If the applicant fails to submit a written statement as called for · or furnish the information referred to in the proviso to sub-section (2), the special judge is empowered to dismiss the application. The landlord is not required to implead any .creditors as party respondents in his written statement, but he has to furnish information regarding the names and addresses of his creditors so far as they are known to or can be ascertained by him and his failure to give information may result in a dismissal of the application. Section 9 requires the special judge to publish in the official gazette a notice in English calling upon all persons having claims in respect of private debts both decreed and undecreed against the person or the property of the landlord to present to the special judge within three months from the date of the publication of the notice, a w.ritten statement of their claims. He is also required to cause copies of such notice to be published in such paper or papers as he may direct and to exhibit it at his own office, at the office of the collector and at some ' S.C.R. SUPREME COURT REPORTS 511 conspicuous place where the landlord resides. He is further directed to send a copy of the notice and a copy of the written statement under sub-section (1) of section 8 by registered post to each of, the creditors whose names and addresses ·are mentioned in the statement under clause (d) of sub-section (1) of section 8. Section · 10 prnvides that every claimant referred to in section 9 shall in the written statement of his claim give full particulars thereof and shall state so far as they are known to or can be ascertained by him, the nature and extent of the landlord's proprietary rights in the land and the nature and extent of the landlord's property other than proprietary rights in land. The provisions of this section not only require a creditor to give particulars of his own debt but also give him opportunity to contend that the landlord has secreted some property. Section 11(1) of the Act directs the special_ judge to publish a notice specifying the property mentioned by the applicant under section 8 or by any claimant under section 10. The object of the provisions made in section 11 ( 1) is to find out the extent of the property that can be utilized towards liquidation of the debts ascertained under the subsequent prov1s10ns of the Act. Section 11 (2) provides as follows:- "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." Sub-section (3) directs the special judge to determine such claims before he proceeds to determine the amount due to anv creditor under section 14. He is further directed n~t to pass any decree under section 14 until the expiry of a period of one month from the last day on which he determines a claim under section 11. Sub-section ( 4) of section 11 provides that any order passed by the special judge under this section shall be 1953 Deputy Commissioner, Hardoi , ,. Rama Krishna Narain and Others. Mahajan]. • 1953 Deputy Commissioner, Hordoi u. Rama Krishna Narayan and Others. Ma.~ajanJ. 512 SUPREME COURT REPORTS [1954] deemed to be a decree of a civil court of competent jurisdiction. Section 13 enacts that every claim, decreed or undecreed against the landlord shall, unless made within the time prescribed be deemed for all purposes and on all occasions t.o have been duly discharged. Section 14 lays down the procedure for determination of the amount of debts. The judge is directed to g' vc notice of the date of enquiring into the claims of the creditors to the different claimants and to the person who has made the application under section 4. He is directed to examine each claim after hearing all such parties as desire to be heard and after considering the evidence, if any, produced by them. The section lays down the mode of calculating interest on the amount of such claims and provides for the application of the provisions of the Usurious Loans Act to the prrJceedings under the Act. Sub-section (7) provides as follows :- "If the special judge finds that any amount is due to the claimant he shall pass a simple money decree for such amount together with any costs which he may allow in respect of proceedings in his court and of proceedings in any civil court stayed under the provisions of this Act, together with pendente lite and future interest at a rate not greater than the rate specified in section 27 and if he finds that no amount is due, he may pass a decree for costs in favour of the landlord. Such decree shall be deemed to be a decree of a civil court of competent jurisdiction but no decree against the landlord shall be executable within the United Provinces except under the provisions of this Act." Section 18 provides that subject to the right of appeal or revision, the effect of a decree of the special judge under sub-section (7) of section 14 shall be to extinguish the previously existing rights, if any, of the claimant, together with all rights, if any, of mortgage or lieu by which the same are secured and, where any decree is given by the special judge to substitute for those rights a right to recover the amount of the decree in the manner and to the extent specified in the Act. Section 45 provides for appeals and revisions :against orders and decrees of the special judge. :S.C.R. SUPREME COURT REPORTS 513 It is app1rent from the provisions of the Act cited :above that the U.P. Encumbered Estates Act is no more, nor less than, a code for the administration of the assets of the landlord-debtor and for giving relief lo him in a number of ways against the ;:ontractual rights of his creditors. It clearly deprives the creditors of any remedies that they would ordinarily have in ordinary civil courts and extinguishes the mortgages held by them. Section 11 (2) deals with claims of third parties to the property alleged by the landlord as belonging to him and the judge is required to determine whether such property is liable to attachment or sale. It is noteworthy that under section 14(1) the special judge is directed to follow a certain procedure, but no such procedure is prescribed under section 11(2). In section 14 he is required to fix a date and to give notice of tl1e date of inquiring into the claims of the ·creditors to all the claimants. There is no such parallel requirement in respect of claims of third parties under section 11 (2), though as a matter of practice similar procedure is also followed in an enquiry under this section. The question that requires consideration in these circumstances is whether the rules of the first schedule to the Code of Civil Procedure should be rigorously applied to proceedings under the Encumbered Estates Act, and whether the creditors who are no doubt persons interested in those proceedings and who would ultimately be entitled to recover their decretal debts from the property the extent of which falls for determination in an enquiry under section 11, are necessary parties in the enquiry, or are merely proper parties thereto and as such entitled only to notice of the pro- ·Ceedings. Order 1, Rules 1 and 3 of the Code of Civil Procedure, provide in regard to the persons who are to be joined as plaintiffs or those who have to ·be joined as defendants in suits. Rule 1 is in these terms :- "All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, 1953 D'fJuty Commissioner, Hardoi v. Rama Krishna Narain and Others. Mahajan]. 1953 Deputy Corrim!ssioner HarJoi v. Rama Krishna Nara-in and OtJ.,..,, Mahajan]. , 514 SUPREME COURT REPORTS [19541' severally or in the alternative, where, if such persons. brought separate suits, any .common question of law or fact would arise." Rule 3 provides :- "All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons, any common question of law or fact would arise." It is apparent that Hrictly speaking the prov1S1ons. of these rules cannot be applied to the proceedings. contemplated by the U. P. Encumbered Estates Act. These proceedings cannot be described as suits. It was conceded at the Bar that an inquiry into third party claims under section 11(2) cannot be described as a suit. Neither section 8 nor section 11 provides that the creditors have to be im pleaded as parties respondents in such an objection application. As. already said, the section provides that the applicant has to give information about the names of the creditors and the amounts due to them. Till the time that a decree is passed under section 14 in favour of any of the creditors it, cannot be said that any one of them is entitled to share in the property of the debtor. It is only when a claim has been made under section 10 by a creditor and it has ripened into a decree that he is. entitled to share in the assets of the landlord. But if he commits a default in submitting a written statement of the claim under section 10, the claim stands discharged under section 13. In this particular case it is not clear whether any of the creditors except the Unao Commercial Bank had made a claim under section 10. It is also not clear whether any decree under section 14 has been passed fo favour of any of the creditors. An inquiry for the determination of the quantum of the debts of the landlord can only be made after third party claims have been settled under the provisions of section 11(2). In view of these provisions it seems difficult to hold that the technical and S.C.R. SUPREME COURT REPORTS 515 strict rules as to impleading of parties can have application to proceedings under section 11 of the U.P. Encumbered Estates Act. It is true that the creditors must be given notice and opportunity to say whether the landlord has secreted any property, but if they do not do so and are content with the disclosures made by the landlord they cannot be said to have any further interest in the quantum of the property which the landlord has mentioned under the provisions of section 8 in his written statement. In that situation, if a third party claims any item of property mentioned by the landlord in the written statement, the controversy at that stage lies only between the landlord and the claimant, though in the result the creditors may either be benefited or deprived of some of the assets which the landlord discloses in the application as liable to attachment and sale towards payment of decrees that may be passed in favour of the creditors. It can well be assumed that the fight at that stage being a bona fide fight between the objector and the landlord, the interests of the creditors will be fully represented by the landlord and any decision obtained in his favour or against him would be binding on all the creditors on the principles enacted in explanation 6 to section 11, Civil Procedure Code. If, . therefore, in such a contest the claimant loses and the landlord succeeds, then in an appeal against that decision he need only implead the landlord as. a party respondent and it is not necessary to implead all . the creditors as respondents merely on the ground that ultimately they would be affected by the result, either to their benefit or to their detriment. The court has power, if it considers that the presence of the creditors is necessary at the hearing, to give them notice of the appeal so that they may have the opportunity of placing their contentions before it. The observance of such a procedure may well conduce to a fair hearing of the appeal, even if the creditors have raised no plea of any kind before the special judge. In a case, however, where the creditors raise a plea that the landlord has secreted certain Property and it should be included in the schedule and such property is then claimed by a third 1953 Deputy Commis.1ionu· Hardoi • v. Rama Kri"shna Narain and ~Others. Mahajan]. 1953 Deputy Commi.s£iontr • Hardoi v. Rama Krishna Narain and Otherse -Maha;anJ. 516 SUPREME COURT REPORTS [1954] party, they may well be regarded as real parties to the controversy and failure to implead them may result in the appeal being imperfectly constituted. In the situation that arises in the present case the appeal should have been held to be properly constituted because all those who raised any controversy whatsoever as to the ownership of the property ·in dis1:mte were imp leaded. \Ve are fully conscious of the fact that the view that we have expressed above is not in conformity with a number of decisions of the Oudh Chief Court and the Allahabad High Court. It is therefore necessary to examine those decisions in order to see whether the reasons given therein are sound or erroneous. In Rames/ubar v. Ajodhia Prasad(') a Bench of the Oudh Court held that all the creditors who were impleaded as parties to the application under the Act are necessary parties to an appeal by the objector against an adverse order passed against him under section 11. This judgment proceeds on the assumption that all the creditors having been impleaded as parties to the application and not having been made respondents in the appeal, the appeal became imperfectly constituted. In this case the question whether under the provisions of the Encumbered Estates Act an applicant is required to implead creditors as parties to the application was neither argued nor c012sidered ; on the other hand, it was assumed that all the creditors have to be impleaded as parties in the application made by · the claimants under the Act. That assumption is, of course, erroneous. Under section 4 the applicant is entitled to request the collector, that the provisions of the Act be applied to him and relief given to him under its provisions. He is not required even to give information about the names and addresses of creditors and no question of impleading anyone as a respondent arises at that stage. \Vhen the collector has forwarded this application to the special judge, then the special judge is empowered to call upon the applicant to file a written statement and therein he is bound to give information about the (1) A.I.R. 1941 Oudh 580. S.C.R. SUPREME COURT REPORTS 517 names and addresses of his creditors so far as they are known to him or can be ascertained by him. In the written statement which he is called upon to file on a requisition by the special judge he is not called upon to implead any persons as parties, in the sense in which that term is used in the Code of Civil Procedure. This decision therefore is not of any help on the point that was argued before us. In Chaudhri Bishunath Prasad v. Sarju Saran Tewari('), another Bench of the Oudh Court held that an enquiry into the indebtedness of the landlord is to be carried out by the special judge in the presence of all the creditors, that though it is true that each creditor is interested in establishing his own debt against the landlord, he is further interested that the landlord should not be allowed to withhold any property from the ·court, and that if a claimant under section 11 sets up a title to the property shown by the landlord to belong to him, although the real contest may for the time being be between the claimant on the one hand and the landlord on the other hand, it is to the ultimate interest of the entire body of the creditors that the property should be held to belong to the landlord, and if the decision is in favour of the landlord, all the creditors will be entitled to have ·their debts satisfied out of such property ; but if, however, the decision is against them, the property will go ot:t of the reach of the creditors and will not be available to them for the satisfaction of their debts. It was further held that as all the creditors had not been joined as parties to the appeal and as they were interested in the result of the appeal, it could not be held that they were< wholly unconcerned in the result of the case and therefore the appeal was not maintainable. It seems to us that in making these observations the learned fudges did not clearly bear in mind the distinctions between the provisions of sections 11 and 14 of the Act. Section 14 fays clown a definite procedure so far as the enquiry ihto the claims of creditors is concerned. Each creditor has 1 to establish his· · claim against the landlord as he (1) A.J.R. 1942 Oudh 16. 1953 - Deputy CommisJiontr Hardoi v. Rama Krishna· Narain and Others. -- Mahajan]. ~ Depv;y Commissioner Hardoi v. Rama KriJhna Narain and O!_hm. Mahajan]. 518 SUPREME COURT REPORTS [1954] would do if he had filed a suit against him. This enquiry is made after the quantum of the property of the debtor has been ascertained under section 11. As already pointed out, if any creditor raises any dispute as to the quantum of the property as he is entitled to raise such a dispute in his written statement filed under section 10, in that situation it may well be held that such a creditor is directly interested in the enquiry under section 11 ; but it is difficult to see that all other creditors who have accepted the list of property filed by the debtor as true are directly interested in the enquiry under that section and are as such necessary parties and that without impleading them the enquiry cannot proceed. Rules 1 and 3 of Schedule I of the Code of Civil Procedure do not lay down that every person who is ultimately interested in the result of a suit should be impleaded as a defendant. All that these rules insist upon is that all persons should be joined as defendants against whom any right to relief is alleged to exist, provided that such right arises in respect of the same act or transaction or series of acts or transactions and the case is one where common question of law or fact would arise. It is not possible to hold that the objector can claim any right to relief against the creditors as such. The right to relief in the enquiry under section 11 is only against the landlord who alleges himself to be the owner of the property which the claimant says belongs to him, and creditors have no right of interest in the property claimed by the objector. The test of ultimate benefit therefore laid down by the Oudh Court for holding that all creditors are necessary parties in the enquiry under section 11 of the U.P. Encumbered Estates Act does not fulfil the conditions laid down in the Code for impleading parties as plaintiffs or as defendants. If they are not necessary parties in the true sense of the term in the enquiry under section 11, a fortiori failure to implead them as respondents in the appeal i:annot make that appeal defective. In Lakshmi Narain v. Satgurnath(') another Bench of the Oudh Court took the same view. In this case (t) A.1.R 1940 Oudh 339· S.C.R. SUPREME COURT REPORTS 519 the earlier decisions of the Oudh Court were followed. The view was reiterated that creditors are parties in the proceedings under the Encumbered Estates Act. In Benares Bank Ltd., Benares v. Bhagwandas (' ), a Full Bench of the Allahabad High Court considered this question and expressed the same -0pm1on as had been expressed in the Oudh decisions referred to above. Mr. Justice Braund, who was one of the Judges constituting the Full Bench, with great reluctance shared the opinion of the majority merely out of respect for the opinion of Pathak J. and it appears that, left to himself, he would have held otherwise. The majority judgment was