JUDGMENT

1. This is an appeal against a decree of the special Judge first grade, Luoknow. The appellant had applied under Section 4, Eucumbered Estates Act. The respondent Ram Das preferred a claim for Rs. 6936-10-0 on the basis of a mortgage deed dated 25th November 1929. The applicant had before making the application under Section 4 brought a suit under Section 33, Agriculturists' Relief Act, and it was decided on 28th October 1936. A declaration was made that the amount due on the mortgage deed was Rs. 11,188-2-6. The application under Section 4 was made on that very date. It was contended on behalf of the respondent that he was not bound by the decree in the suit under Section 33, Agriculturists' Relief Act. The learned civil Judge agreed with his contention and allowed Rs. 16,000 with future interest at 4 per cent, from 29th October 1936, till realization. He also allowed costs on Rs. 4812. The principal amount seoured was Rs. 8000 and the special Judge allowed Rs. 16,000 to the respondent under Section 14(4)(a), Encumbered Estates Act. It is contended in appeal that the respondent was bound, by the decision in the suit under Section 33 and he was not entitled to get more than Rs. 11,188-2-6. Section 15, Encumbered Estates Act, provides:

In determining the amount due on the basis of a loan which has been the subject of a decree, the special Judge shall accept the finding of the Court which passed the decree except in so far as they are inconsistent with the provisions of Section 14.

Section 14 Clause (4) provides:

In examining each claim the special Judge shall have and exercise all the powers of the Court in which a suit for the recovery of the money due would lie and shall decide the questions in issue on the same principles as those on which such Court would decide them subject to the following provisions, namely, (a) the amount of interest held to be due on the date of the application shall not exceed that portion of the principal which may still be found due on the date of the application; (b) the provisions of the Usurious Loans Act 10 of 1918 will be applicable to the proceedings under this Act; (o) the provisions of the U.P. Agriculturists' Relief Act of 1934 shall not be applicable to proceedings under this Act.

2. It is argued on behalf of the respondent that as the decree was under the Agriculturists' Relief Act which is not applicable to proceedings under the Encumbered Estates Act, it is not binding on him under Section 15. The point has been recently decided by a Bench of this Court in Mohammad Husain v. Nageshwar Prasad, A.I.R. 1941 Oudh 193. It was held that a decree under Section 33, Agriculturists' Relief Act, is not inconsistent with the provisions of Section 14, Encumbered Estates Act. It was further held that a special Judge has to ignore the provisions of the Agriculturists' Relief Act while acting under Section 14, Encumbered Estates Act, but he cannot ignore a decree passed under the Agriculturists' Relief Act. It was pointed out in that case that Section 4(8), Encumbered Estates Act, provides that if within three months after the date on which Chap. 3 of the Act comes into force, a landholder has applied for amendment of a decree under the provisions of the U.P. Agriculturists' Relief Act, the period from the date of his application to the date of the final disposal thereof shall be excluded from the period within which to make an application under Sub-sections (1) and (2) of the section. It follows that a landlord can first apply under the Agriculturists' Relief Act and then under the Encumbered Estates Act.

3. It was held by the Allahabad High Court in Ranbir Prasad v. Sheobaran Singh, AIR1939All619 that the provision in Section 14(4)(c), Encumbered Estates Act, that the provisions of the Agriculturists' Relief Act shall not be applicable to proceedings under that Act is for the special Judge and means that the special Judge will not while disposing of the matter under the Encumbered Estates Act