JUDGMENT

Ziaul Hasan, J - This is an application under Section 115, Civil P.C, against an order of the learned Munsif, Haveli, Lucknow, disallowing the applicant's objection to the continuance of a suit in his Court. On 14th September 1935, Maqbulunnissa, opposite party, and her four sons executed a deed of mortgage in respect of a share in a village in favour of the present applicant and another. On 28th September 1935, she filed a suit in the Court of the Civil judge under Section 33, Agriculturists' Relief Act, against the present applicant and the other mortgagee. The valuation of the suit was Rs. 500 only and in view of a notification of this Court amending para. 268 of the Oudh Civil Rules, the plaint was returned by the Civil Judge on 17th February 1936, to be presented to the proper Court. On the next day, that is 18th February 1936, the suit was filed in the Court of the Munsif, Haveli. It was decreed by the Munsif on 25th August 1936. An appeal against the decree of the learned Munsif was filed by the present applicant on 15th October 1936, and on 12th February 1937, the Appellate Court remanded the case to the trial Court for retrial after making Maqbulurmissa's sons parties. In the meantime on 27th October 1936, Maqbulunnissa applied under Section 4, Encumbered Estates Act, and when the suit was resumed by the learned Munsif, the present applicant contended firstly that Section 33, Agriculturists' Relief Act, did not apply to mortgage debts, and secondly that the suit should be stayed under Section 7, Encumbered Estates Act. Both these objections were overruled by the learned Munsif. An appeal was filed by the applicant in the Court of the District Judge but the learned Judge held that no appeal lay to his Court. Hence the present application for revision of the learned Munsif's order.

2. So far as the first contention of the applicant, namely that Section 33, Agriculturists' Relief Act, does not apply to mortgage debts, is concerned, it is conceded by the learned Counsel for the applicant that this contention cannot prevail in view of the decisions of this Court. The only question therefore that is before me is whether or not the learned Munsif was right in holding that the opposite parties' suit under Section 33,. Agriculturists' Relief Act, cannot be stayed on account of the provisions of Section 7, Encumbered Estates Act. I have gone through the order of the learned Munsif and considered the arguments of the learned Counsel for the applicant but am of opinion that the learned Munsif's order is perfectly right. While Clause (a) of Section 7(1), Encumbered Estates Act, deals with proceedings pending in any civil or revenue Court at the date of the order of the Collector under Section 6, and provides that such proceedings shall be stayed, Clause (b) prohibits the filing of a fresh suit or other proceeding in respect of any debt after the Collector has passed his order under Section 6. In the present case the Collector passed his order under Section 6 on 27th October 1936, but at that time the opposite parties' suit under Section 33, Agriculturists' Relief Act, was not pending but had been decided by the learned Munsif and was in appeal before the District Judge but under Clause (a) there is no bar to an appeal being pending in any Court on the date of the Collector's order. Therefore neither Clause (a) nor Clause (b) of Section 7 applies to the present case.

3. It is argued that as the case had been remanded by the Appellate Court for trial de novo on 12th February 1937, the suit should be deemed to have been filed afresh on that date and should be dealt with under Clause (b). I am unable to accept this argument. Clause (b), Section 7(1) appears on the face of it to apply to a suit or other proceeding filed by a party after the passing of an order under Section 6 and does not contemplate in my opinion suits or proceedings remanded by a Court of Appeal. Moreover, both the clauses of Section 7(1) appear to me to con