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ALLAHABAD HIGH COURT
BOMFORD, DARLING, JJ.
Shanar Sahai - Appellant
Versus
Athar Ali & Ors. - Respondents
First Appeal Petition No. 16 of 1935-36
Decided On : 20-12-1936
JUDGMENT
Darling S.M.
1. Chaudhri Athar Ali, Chaudhri Asghar Ali and Mst. Iftikhar.un.nisa made an application before the Deputy Commissioner of Bara Banki u/s 4 of the Encumbered Estates Act: the Deputy Commissioner passed an order u/s 6, which was then sent to the Special Judge. Subsequently by a petition, dated the 28th July, 1936, presented to the Deputy Commissioner, the applicants asked for permission to sell property to the Dewa Exhibition Committee; they needed money for (a) marriage expenses, and (b) repair of their residential house. By a summary order, dated the 3oth July, 1936, the Deputy Commissioner granted the petition and sanctioned the proposed alieration of the property in question in favour of the Dewa Fair Association: none of the creditors were asked whether they had any objection Now one of the creditors, I ala Shankar Sahai, comes to the Board in appeal, and asks that the order of the Deputy Commissioner be set aside.
2. Under Rule 24 of the Rules, framed by the Local Government in exercise of the powers conferred by Section 54 of the Encumbered Estates Act, "the Collector shall not sanction the sale u/s 7, unless he considers that the price obtained is a fair one and unless the whole of the sale price as deposited in his Court." Under Rule 84 of the same Rules "the Collector shall sanction no transfer of property under Sub-section (3) of Section 7 which will prejudice the interest of the creditors collectively or individually.'' There can be no question whatever that this transfer is to the prejudice of the creditors: if he sale price were to be paid into the Court of the Collector for the benefit of the creditors, the matter would have been different: but the proceeds of the transaction are to be utilised entirely for the benefit of the debtors.
3. In these circumstances I would allow the appeal and would set aside the order of the Deputy Commissioner. Parties may bear their own costs.
4. Bomford J.M.-I agree.
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