JUDGMENT

Verma, J. - This is an application for revision by the plaintiff, in a suit filed in the Court of Small Causes at Benares, against the decree of the Court dismissing the suit. Three persons, Nasiruddin, Muniruddin and Khabiruddin, executed a promissory note in favour of the plaintiff firm on 12th August 1934, agreeing jointly as well as severally to pay to the plaintiff on demand a certain sum of money at a certain rate of interest. Sometime in 1936, Nasiruddin and Khabiruddin made an application u/s 4, U.P. Encumbered Estates Act (25 of 1934), and the Collector passed an order u/s 6 of the Act on 6th November 1936. On 12th August 1937, the suit, out of which the application for revision has arisen, was filed against all the three executants of the promissory note, namely Nasiruddin, Muniruddin and Khabiruddin. The fact that Nasiruddin and Khabiruddin had made an application u/s 4 of the Act and that the Collector had passed an order u/s 6 having been disclosed in Court, the plaintiff made an application on 28th December 1937, stating that he wanted to proceed against Muniruddin alone and praying that Nasiruddin and Khabiruddin be exempted from the suit. The Court, in accordance with the request of the plaintiff, dismissed Nasiruddin and Khabiruddin from the suit, and directed that the suit was to proceed against the only defendant left on the record, namely Muniruddin, and a date was fixed for final decision. When the case came on for bearing an objection was taken on behalf of Muniruddin that the suit was not maintainable against him also, although he had not made any application under the Encumbered Estates Act. The learned Judge has accepted this contention and has dismissed the suit. The learned Counsel appearing for the plaintiff firm has read to us the promissory note in suit and has relied on the fact that in that document the liability undertaken by the three executants was not only a joint liability but was also, in so many words, a several one. His argument is that Section 9(5) of the Act does not apply to such a case. He further contends that the reliance placed by the Court below on the language of Section 13 of the Act is not correct. He urges that the relevant words of Section 13 are:

Every claim decreed or undecreed against a landlord...shall, unless made within the time and in the manner required by this Act, be deemed for all purposes and on all occasions to have been duly discharged.

2. The point raised is that it is the claim against the landlord that is to be deemed to have been duly discharged, and not the claim against other persons. Having heard learned Counsel on both sides, we have come to the conclusion that the contentions of the plaintiff-applicant are well founded. It seems to us that Section 9(5) of the Act contemplates only those cases in which the liability of the debtors is joint and not those cases in which it is joint as well as several. Reference has been made to the case in Swadeshi Bima Co. Ltd., Agra v. Shiv Narain AIR (1939) All 75. It has been held in that case that

any person who is not a landlord but who incurs a liability jointly and severally with a landlord who makes an application u/s 4, Encumbered Estates Act, cannot plead that no suit can be instituted against him in respect of that liability. It is only in those cases where his liability with the landlord is only joint and not several that it may be open to him to contend that no suit can be instituted at all.

3. We agree with the decision that in a case where the liability of two debtors is not merely joint, but also joint and several, and one of them happens to be a landlord who makes an application u/s 4, Encumbered Estates Act, it is not open to the other to raise the objection that a suit cannot be instituted against him. The object of the U.P. Encumbered Estates Act is "to provide for the relief of encumbered estates." It is not intended to afford any relief to those who do not come within the four corners of the Act