JUDGMENT

Ghulam Hasan, J - This is an appeal by two creditors, Babu Ram and Ram Charan, under Section 45, U.P. Encumbered Estates Act, against the order dated 28rd January 1989, passed by the Special Judge, First Grade, Lucknow, rejecting the application of the appellants for stay of proceedings before him pending the decision of the appellants' objection by the Collector and the Board of Revenue. The facts are shortly these: The respondents applied under Section 4, Encumbered Estates Act, on 18th June 1986, before the Collector. The application was forwarded to the Special Judge under Section 6, Encumbered Estates Act, and was received by him on 23rd July 1936. It appears from the record of the case that there were several dates of hearing upon which the claims of the various creditors were considered by the Special Judge. Proceedings in the Court of the Special Judge were somewhat protracted as is not unusual in cases of this description. It is not necessary to refer to any of those proceedings beyond saying that the claims of the present creditors, who are mortgagees without possession, were not disputed by the applicants landlords.

2. On 23rd January 1989, which was the last date of the hearing in the Court of the Special Judge, the appellants filed an application purporting to be one under Section 151, Civil P.C. It was stated in this application that Bajrang Singh, Lachhman Singh, Rameshwar Dutt Singh and Mahesh Singh had sons, who constituted a joint Hindu family along with them, but the applicants had not joined these members of the joint Hindu family in the application under Section 4, Encumbered Estates Act, and their application was not maintainable in law and was liable to dismissal. The appellants further pointed out that they had already raised the question about the maintainability of the application under Section i to the Collector, who had admitted the appellants' objections and the following day, namely 24th January 1939, was fixed for holding an enquiry into the matter. It was also pointed out in the application that by reason of the omission to join the other members of the joint Hindu family referred to above the interests of the appellants were not safe and they were liable to suffer on account of the default of the applicants landlords. The appellants prayed to the Special Judge that he may be pleased to postpone further proceedings in the case pending the decision of the appellants' objections by the Collector and the Board of Revenue.

3. The Special Judge by an order of the same date rejected this application. He took the view that once the case has been forwarded by the Collector to the Special Judge the Collector or any higher revenue authority ceased to have any control over it and no subsequent order of the said revenue authority can possibly deprive the jurisdiction of the Special Judge which he holds over the case under the statute. He also expressed the opinion that it would be very hard to deprive the landlord of the benefits of the provisions of the U.P. Encumbered Estates Act upon such technical ground as the omission to join other members of the joint Hindu family in the application. The learned Special Judge also observed that if there was a legal defect in the application, the same should be allowed to be amended so as to include all the members of the joint Hindu family. Upon this view the appellants' application was rejected and the learned Special Judge proceeded to pass the decrees in favour of the various claimant-creditors, including the appellants. He also ordered that the decrees be sent to the Collector under Section 19 of the Act. Notice of this appeal was issued to both parties for 4th November 1942. Mr. Mustafa Raza, who has filed the memorandum of appearance on behalf of the respondents, signed the notice in token of service on 31st October 1942. Mr. Rajeshwari Prasad, who appears for the appellants before me, also signed the notice but after Mr. Mustafa Raza had signed it. Mr