JUDGMENT

1. This is a first civil appeal from the decree of the Additional Special Judge, first grade, Bara Banki, dismissing the claim of the claimant appellant under the provisions of Section 11, Encumbered Estates Act. This is a claim with reference to a 16 annas zamindari share of mahal Gur Bakhsh Singh, village Baddupur, pargana Fatehpur, district Bara Banki. This property was mortgaged in favour of one Jagannath on 10th February 1919. On 1st May 1921, it was again mortgaged to Hargobind Prasad, the present claimant. It appears that both Hargobind Prasad and Jagannath filed suits on foot of their mortgages, the latter making Hargobind Prasad a party to his suit. Hargobind Prasad got a preliminary decree on 19th July 1929, and a final decree for Rs. 31,125 on 25th October 1930. Jagannath got a decree on 27th August 1932. The final decree of Hargobind Prasad was transferred to the Deputy Commissioner under the provisions of Section 68, Civil P.C., on 17th November 1933. Proceedings were still pending in the Deputy Commissioners Court when Mt. Maharaj Kuar as owner of the property filed an application under Section 4, Encumbered Estates Act. In due course Hargobind Prasad in whose favour the Deputy Commissioner had made an order of transfer of this very property on 22nd August 1935, under the provisions of Section 5 read with Sections 3 and 4, U.P. Regulation of Sales Act (Act 26 of 1934), filed a petition under Section 11, Encumbered Estates Act, because Mt. Maharaj Kuar had in her writ-ten statement under Section 8(1)(b) of the latter Act, included this property in the statement of the nature and extent of her proprietary rights in land. This transfer to Hargobind Prasad had been made at the figure of Rs. 40,093-2-11. Under Section 3, Regulation of Sales Act, an appeal is provided to the Board of Revenue from the decision of the Collector fixing the net profits or the multiple of such net profits under Sub-section (2). Mt. Maharaj Kuar filed a review application which was dismissed on 24th October 1935. She either subsequently or contemporaneously filed an appeal which was dismissed by the Board of Revenue on 24th August 1936. Meanwhile on 2nd November 1935, Hargobind Prasad got a sale certificate, and on 28th February 1936, he got this sale certificate registered. The procedure in regard to these matters has since been altered and a regular sale deed is now executed by the Collector or Deputy Commissioner when an order of transfer is made under Section 5, Regulation of Sales Act. That procedure however was not in force at this time.

2. Mt. Mahraj Kuar had also on 3rd September 1935, applied for amendment of the final decree for sale in favour of Hargobind Prasad under the provisions of the U.P. Agriculturists Relief Act, but that application was dismissed by the Subordinate Judge on 18th November 1935, and an appeal from this order was dismissed by the District Judge on 26th September 1936. The Subordinate Judge held that the sale was complete with the passing of the order of transfer under Section 5, Regulation of Sales Act, and that in consequence the decree had been satisfied and could not be amended; The District Judge did not agree with the Subordinate Judge being of opinion that the transfer order of 22nd August 1935; did not effect a transfer of the property which was only effected by the issue of the sale certificate on 2nd November 1935, but he was of opinion that the decree could not be amended unless and until the transfer made on 2nd November 1935 was set aside. As the Civil Court had no jurisdiction to interfere and set aside the sale made by the Collector, he was of opinion that even if he set aside the order of the Subordinate Judge, it would not help the appellant unless and until the sale was set aside.

3. The contention of the claimant Hargobind Prasad under Section 11, Encumbered Estates Act, was that by virtue of the transfer of 22nd August 1935, he had become sole proprietor of the property in question