JUDGMENT

1. This is an application for revision under Section 46, U.P. Encumbered Estates Act, against the judgment and decree of the Special Judge, first class, Bahraich, dated 17th September 1938. Opposite parties 2 to 4 and Bachai Lal, who is now represented by Mt. Ram Dei, put forward a claim against the present applicants who had applied under Section 4, Encumbered Estates Act. The claim was under Section 10, Encumbered Estates Act, and was allowed by the Special Judge. It is contended by the applicants in revision that the claim has been allowed for a greater amount than what is due from them. The office has reported that an appeal is maintainable from the decree of the lower Court and so the applicants should pay ad valorem court-fee. The learned Counsel for the applicants has expressed his inability to pay the ad valorem court-fee required for an appeal. His argument is that an application for revision is maintainable and the court-fee paid is sufficient. It is not denied that an appeal could be filed from the decision of the Special Judge which was a decree. Section 46, Encumbered Estates Act, provides:

Any Court empowered under Section 45 to hear an appeal under this Act may of its own motion or on the application of any person concerned, call for the record of proceedings in any case under this Act pending in a Court from which appeals lie to such Court and after giving due notice to the parties concerned pass such orders thereon consistent with the provisions herein contained as it thinks fit, and such order shall be final.

2. The fact that an appeal can be filed from the decree or order complained of is no bar to the maintainability of a revision but it is argued that the Court in the exercise of its discretion should not entertain a revision when an appeal is maintainable. It is also argued that an application under Section 46 can be made only when a case is pending and not after it has been decided and that in the present case the claim had been decided. We are of opinion that both the contentions are sound. It was held in Mohammad Ali v. Bhari Dulhin, AIR1939All648 that ordinarily a litigant should not be heard in revision if he deliberately elected not to avail himself of his remedy by way of appeal which was open to him, otherwise it would be open to a litigant to ignore the provisions relating to the filing of appeals and to come to the High Court in revision in each case and thus avoid payment of court-fee. The Board of Revenue held in Prasram Saintwar v. Ori Lal, 1942 O.A. Sup. 402, Prasram Sainthwar v. Ori Lal that under Section 46 the Board can interfere even on matters of fact in revision and its jurisdiction is not confined merely to setting right defects of a legal nature or of procedure or of jurisdiction, but simply because the Board has this power the Board does not exercise it when the points raised in the revision are such as could more properly have been raised in a regular appeal and the applicant files a revision even though an appeal lay in the case. In the present case the applicants give no reason for not filing an appeal except that they cannot afford to pay court-fee. This is no ground in our opinion. We therefore refuse to entertain this revision in the exercise of our discretion.

3. We are also of opinion that when the opposite parties preferred a claim it was a separate case and that case was decided by the judgment under revision. No case was pending in the Court of the Special Judge and Section 46 is therefore not-applicable. The learned Counsel for the applicants has relied on Sections 18 and 20 in support of his contention that the case was pending. Section 18 provides:

Subject to the right of appeal or revision conferred in Chap. 6 the effect of a decree of the Special Judge under Sub-section (7) of Section 14 shall be to extinguish the previously existing rights, if any, of the claimant, together with all rights, if any, of mortgage or lien by which the same are secured and, where