JUDGMENT

Dar, J. - This is an appeal against a judgment and decree, dated 26th September 1938, of the Special Judge, First Grade of Cawnpore, by which the landlords' liability under a joint debt has been determined and apportioned u/s 9, U.P. Encumbered Estates Act (25 of 1934). Kailash Nath Khanna, resident of Cawnpore, and Moti Lal Daya Ram, resident of Calcutta, had borrowed a large sum of money from the Punjab National Bank Ltd. For the recovery of the debt due to the Punjab National Bank Ltd., the bank brought a suit (No. 380 of 1925) in the Court of the Subordinate Judge of Cawnpore against Kailash Nath Khanna and Moti Lal Daya Ram. On 5th November 1925, a decree was passed in favour of the bank against Khanna and Moti Lal Daya Ram for a sum of Rupees 44,397-10-9. The decree against Khanna was based upon a compromise and against Moti Lal Daya Ram it was ex parte. In an execution case (No. 443 of 1927) which later on arose between Khanna and the Punjab National Bank Ltd., this Court by a judgment dated 19th February 1929, has interpreted the said decree of 1925 as imposing a joint and several liability upon Khanna and Moti Lal Daya Ram and for the purpose of the present case this interpretation has been accepted as correct and it is common ground that under the said decree both Khanna and Moti Lal Daya Ram were jointly and severally responsible to pay the amount of the decree.

2. Before the decree was satisfied, Kailash Nath Khanna died, leaving two sons Vishwanath Khanna and Bishambhar Nath Khanna. On 28th March 1936, Vishwanath Khanna and Bishambhar Nath Khanna presented an application u/s 4, U.P. Encumbered Estates Act (25 of 1934) and in due course this application was transmitted to the Special Judge First Grade of Cawnpore.

3. In the Court of the Special Judge proceedings were taken under Sections 8, 9, 10 and 11, U.P. Encumbered Estates Act (25 of 1934), and in the course of these proceedings an application was made by the landlords to determine the liability of the landlords under the joint decree of 5th November 1925, and to apportion the amount of liability under that decree separately against the landlords and Moti Lal Daya Ram. On behalf of the bank and Moti Lal Daya Ram this application was opposed and an issue was raised and tried out by the Special Judge who, by his judgment dated 2Gth February 1938, found that the landlords were entitled to have the amount due under the said decree apportioned separately against their own share and against the share of Moti Lal Daya Ram. Accordingly the Special Judge found that the landlords

are liable to pay a sum of Rs. 40,762-10-6 to the bank on the foot of the decree and no more. The rest of the decretal amount, i.e., half of the actual amount due on the decree...shall be paid by Moti Lal Daya Ram.

4. Against this judgment the bank has made this appeal which originally came before a Bench of this Court for hearing and has now been referred to this Bench. The main question for consideration in the case is whether in a case of a debt or a decree which imposes a joint and several liability upon the debtors the landlord is entitled under the provisions of the U.P. Encumbered Estates Act (25 of 1934) to have the joint liability apportioned separately against his own share and as against the shares of other debtors. Section 9, Clause (5), U.P. Encumbered Estates Act (25 of 1934), reads as follows:

   (5). (a) If one or more of several joint debtors                           who are not members of the      Determination of     same joint Hindu family      liability of joint   apply u/s 4 but all the      debtors who are not  joint debtors do not apply      members of a joint   then the special Judge shall       Hindu family.        determine the amount of the                            joint debt which is due by    the debtor or debtors who have applied and the amount due by   those who have not applied. For the purpose of this determination   the Special Judge shall make the joint