JUDGMENT

1. This is a plaintiff's second civil appeal which has been referred to a Bench of this Court by a Single Judge. The Order of Reference is:

This is a plaintiff's second appeal arising out of a suit for a declaration that certain property, which had been charged by the Court in a previous suit, was under the charge of that decree and that it could not be proceeded against so as to defeat the appellant's right under that charge. The appellant brought a suit against Mt. Mohra on the basis of a pronote executed by her and her son, Raja Ram, who was then deceased. The suit was against Mt. Mohra personally and also against the assets of her deceased son in her hand. It was compromised, a certain 'phulwari' being charged in so much as Mt. Mohra agreed not to transfer it. Subsequently, in an application under Sections 5 and 30, Agriculturists' Relief Act, filed by Mt. Mohra instalments were granted and the decree was declared to be a charge on the 'phulwari' under Section 3(2) of the Act. In these decrees nothing was said specifically about the assets of Raja Ram. The 'phulwari' was later attached by the respondent in the present case in execution of his decree against the assets of Raja Ram. There, upon the present appellant made an objection under Order 21, Rule 58 which was dismissed. Then he brought the present suit and obtained a decree in the trial Court but lost his case in appeal before the learned Civil Judge of Bahraich.

3. Appellant's learned Counsel argues that he undoubtedly has a charge. Even without the declaration under Section 3(2), Agriculturists' Relief Act, the intention of the parties while making the compromise would have to be looked at and that compromise amounts to a charge upon the property: vide Narain Das v. Murli Dhar, A.I.R. 1929 Oudh 539 and Jawahir Mal v. Rani Indomati, A.I.R. 1914 All. 187 On the other side Chettyar Firm v. T.R.M. Chettyar Firm, A.I.R. 1934 Rang. 162 and Greender Chunder Ghose v. Mackintosh, 4 Cal. 897 have been cited. The argument is that since nothing was said specifically about the assets in the decrees obtained by the appellant, he must have given up his general lien on the assets of Raja Ram in the hands of Mt. Mohra, and thus he has a charge on the property only in a personal decree against Mt. Mohra. This charge then comes directly into conflict with the respondent's general lien on the assets of Raja Ram deceased, and respondent's learned Counsel argues that since that lien came into being on the death of Raja Ram, it is prior to the charge created by the compromise and must prevail over it. I have not been shown any decision of this Court which would assist me in deciding this point, and the case seems to me to be of sufficient interest and importance to be made the subject of a Bench decision. As it is almost certain that it would be appealed under Section 12(2) whichever way decided, it is just as well that the appeal should be tried straightway by a Bench of two Judges under Section 14(2), Oudh Courts Act. I therefore refer this case to a Bench of two Judges.

The facts are that the appellant filed a suit on 29th May 1933, on the basis of a pronote. The suit was against Mt. Mohra, as executant of the pronote, and against the assets of her deceased son, Raja Ram, in her hand. Raja Ram was the co-executant of the pronote. On 28th August 1938, the parties compromised and on 1st September 1933, a decree was passed in terms of this compromise. Mt. Mohra agreed that a "phulwari" in village Dharaura Chak should be attached. Instalments were also fixed in the compromise. Only one half of the garden was charged as the other half did not belong to the defendant. Subsequent to this compromise decree on 5th December 1933, Jwala Prasad respondent 1 obtained a decree against the assets of Raja Ram in the hands of Mt. Mohra. Some time after this Mt. Mohra applied under Sub-section 5 and 30, Agriculturists' Relief Act, and the decree was amended in accordance with the provisions of