JUDGMENT

Verma, J. - This is an appeal by defendant 1 and arises out of a suit which was brought by the plaintiff-respondent on 22nd August 1935 for the ejectment of the appellant and his brother Ram Swarup, respondent 2, from two houses and for the recovery of a sum of Rs. 115 as arrears of rent for four months 18 days, i.e. from 4th April 1935 to 22nd August 1935. The case of the plaintiff was that he purchased the houses from the defendants by a sale deed dated 4th April 1935 and that the defendants took the houses on rent from him by a "rent agreement" executed by them on the same day, i.e., 4th April 1935, that the defendants promised by that agreement to pay him Rs. 25 per month as rent and that they had paid nothing on account of rent up to the date on which the suit was brought. The plaintiff further alleged that a term of six months had been fixed in the agreement for the tenancy of the defendant but that there was a stipulation in the deed that if the defendants did not pay the rent regularly month by month the plaintiff would be entitled to eject them. He therefore pleaded that the defendants having failed to pay the rent there had been a forfeiture and that he was entitled to eject them although the period of six months had not yet expired.

2. The principal pleas of the defendants were that the sale deed executed by them in favour of the plaintiff on 4th April 1935 was a fictitious transaction and was not intended to convey any title to the plaintiff, that the defendants had submitted an application u/s 4, U.P. Enoumbered Estates Act, that the Collector had passed an order u/s 6 of the said Act on 15th August 1935 and that therefore the suit was barred by Section 10, Civil P.C. and that the notice served on them by the plaintiff was invalid. When the case came up for trial, the defendants evidently further urged that the suit was barred by Section 7(b), U.P. Encumbered Estates Act, The Court of first instance repelled the pleas of the defendants and holding that the sale deed of 4th April 1935 was not a fictitious transaction, that the suit was not barred by Section 7(b), U.P. Enoumbered Estates Act, that it could not be stayed u/s 10, Civil P.C. and that the notice served by the plaintiff was valid, decreed the suit for ejectment and for the recovery of the arrears of rent claimed.

3. The defendants appealed to the lower Appellate Court and repeated the pleas which they had taken in their defence in the trial Court. They also complained that the trial Court did not give them an opportunity to produce their evidence to prove the fictitious nature of the sale deed executed by them on 4th April 1935. The contention based on Section 10, Civil P.C. was apparently not pressed. The learned District Judge held that the defendants were themselves negligent in not being ready with their evidence on 6th January 1936 to which date the case had been postponed and act were not entitled to complain that due notice had been served on the defendants by the plaintiff and that so far as the claim for recovery of the arrears of rent was concerned it was dearly barred u/s 7(b), U.P. Encumbered Estates Act as the definition of "debt" given in the Act was sufficiently wide to include a sum due on account of arrears of house rent but that the claim for ejectment of the defendants from the house was not so barred. He accordingly allowed the appeal to this extent that he set aside the decree for recovery of the arrears of rent passed by the learned Munsif. He dismissed it so far as it was directed against the decree for ejectment.

4. Defendant 1 has filed this second appeal and has impleaded his brother Ram Swarup, defendant 2 as a pro forma respondent. The learned Counsel for the appellant has pressed two points before us : (1) that by the learned Munsif's refusal to accede to the request of the defendants made on 6th January 1935 for adjournment of the case they were prevented from producing their evidence to prove the fictitious nature of t