JUDGMENT

1. This is a second civil appeal by a claimant under Section 45(2a), U.P. Encumbered Estates Act, arising out of a claim in proceedings under Section 11 of the Act. The appellant, Chaudhri Bishunath Prasad was one of the 23 creditors, who were mentioned by the landlords in their written statement under Section 8, U.P. Encumbered Estates Act, filed on 20th May 1936. On 9th May 1937, the appellant put forward an objection under Section 11, U.P. Encumbered Estates Act, to the effect that he was the proprietor of certain properties as a vendee under the deeds (EXS. A-1, A-2 and A-4) executed in 1916 in his favour. These deeds were on the face of them mortgage deeds but his contention was that really the sale deeds had been intended to be executed but in order to avoid pre-emption the deeds were put into the shape of mortgage deeds. Chaudhri Bishunath Prasad also put forward objections in regard to some other property called Sehramau property. The learned Special Judge dismissed the objection of the appellant holding that he was only a mortgagee and not the owner of the property. We are not concerned with the order of the Special Judge in regard to the objections about Sehramau property.

2. Chaudhari Bishunath Prasad preferred an appeal against the dismissal of his objections, and the learned District Judge by an order dated 29th May 1941, upheld the decision of the special Judge that the transaction evidenced by Exs. A-1 and A-2 was one of mortgage and not of sale and dismissed the appeal. Chaudhari Bishunath Prasad has filed a second civil appeal against the aforesaid decision. We are informed by learned Counsel on behalf of the appellant that there was an appeal in regard to the objections relating to Seharmau property and this was also disposed of by the learned District Judge. In this appeal we are, however, not concerned with the order relating to that appeal. A preliminary objection has been taken on behalf of the respondents that this appeal is not maintainable in view of the decision by a Bench of this Court, to which one of us was a party, namely Rameshwar v. Ajodhia Prasad, A.I.R 1941 Oudh 580. The ground of the objection is that the decision of the Special Judge to the effect that the appellant was a mere mortgagee and not an owner was one which enured to the benefit of the other creditors, who were parties to the proceedings under the U.P. Encumbered Estates Act. The appellant in preferring the appeal before the lower appellate Court did not implead the 22 creditors with the result that the decision, obtained in their favour against the appellant became final. In second appeal to this Court, the appellant has again omitted to implead any of the creditors. It is argued therefore that this appeal cannot satisfactorily and effectively proceed in the absence of the creditors who ought to have been made respondents both in the lower appellate Court as well as here and who have not so been made. We are of opinion that this objection must prevail.

3. The ratio decidendi in Rameshwar v. Ajodhia Prasad, A.I.R 1941 Oudh 580 is that the decision having become final and a valuable right having accrued in favour of the creditors, who were not impleaded in the appeal, there will be two conflicting decisions, one in favour of the creditors passed by the Special Judge to the effect that the property should be sold to satisfy the debts of the landlord as it belongs to him, and another decision in appeal should it succeed to the effect that the property should not be sold as it does not belong to the landlord. Applying the same principle in the present case, it follows that the decision of the Special Judge having become final to the effect that the landlord is the owner and the appellant is the mortgagee only and a valuable right having accrued in favour of the creditors who were not impleaded in the appeal, this Court in the event of the appeal being successful, will be constrained to hold, reversing the decision of the Specia