1. This is an appeal against the decision of a learned single Judge of this Court under Clause 10, Letters Patent. The facts are very short and may be stated as follows : On 11th September 1929, the plaintiff, who is the appellant in this appeal, executed a usufructuary mortgage in favour of the defendant, who is the respondent. On an application made by the plaintiff under Section 4, U.P. Encumbered Estates Act, a simple money decrees tinder Section 14 of that Act, was passed on 15th November 1987, in favour of the defendant. The plaintiff made an application to the Collector under Section 85 of that Act, praying for delivery of possession over the mortgaged property and possession was delivered to the plaintiff on 14th June 1939. Thereupon the plaintiff raised the action out of which this appeal has arisen for rendition of accounts and for recovery of mesne profits for the period beginning from 15th November 1987, the date on which the decree under Section 14, U.P. Encumbered Estates Act, was passed, and ending with 14th June 1989, the date on which delivery of possession took place.
2. The trial Court granted a decree for accounts which was affirmed by the lower appellate Court. Against the decree of the lower appellate Court, the defendant brought an appeal to this Court which was allowed by a learned Single Judge who dismissed the suit upon the ground that the defendant was not in unlawful possession and that neither the claim for accounts, nor for mesne profits could be entertained by the civil Court. The only question raised by the present appeal is whether the suit out of which this appeal has arisen is maintainable. The suit is of a civil nature and unless its cognisance is either expressly or impliedly barred, the civil Court would have jurisdiction to try it. There is no express provision in the Encumbered Estates Act barring the cognisance of such a suit by a civil Court. It is necessary, therefore, to examine whether there is any implied bar by reason of anything contained in the Encumbered Estates Act. The answer to this question would depend upon the legal effect of Sections 18 and 85 of that Act. The former section lays down that the legal effect of a decree passed under Section 14 of that Act '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 'to substitute for those rights a right to recover the amount of the decree in the manner and to the extent hereinafter prescribed.'
3. One of the rights belonging to the mortgagee under the usufructuary mortgage was the right of possession over the mortgaged property. This right was extinguished by operation of law with the result that the possession of the mortgagee, with effect from the date of the decree under Section 14, became without title. In our judgment, such possession, being without any right, was wrongful possession and the duty rested upon the mortgagee to restore the same to the rightful owner, namely, the mortgagor. In case the mortgagee failed to fulfil this obligation, the mortgagor could have re-course to the remedy provided by Section 35, Encumbered Estates Act. The Legislature contemplated that instead of resorting to the ordinary civil Court for pursuing his remedy, the mortgagor could make an application to the Collector for delivery of possession under that section. The Legislature, however, did not make any provision for procedure for recovery of profits which the rightful owner would be entitled to realise from the person in wrongful possession. Such profits would be 'mesne profits' as defined by Section 2(12), Civil P.C. There being no provision in the Encumbered Estates Act extinguishing the right of the mortgagor to recover the mesne profits or to pursue the remedy in respect thereof, it is manifest that the ordinary remedy to file a suit for recovery of mesne profits in the civil Court is not barred by anything contained in the Encumbered Estates Act. As stated above, Section 35, which is a remedial section, is confined only to the remedy of delivery of possession. A statute does not of itself, and necessarily, destroy rights and remedies to which it does not refer. We, therefore, cannot imply a bar to the remedy to resort to the ordinary civil Court for recovery of mesne profits from the mere fact that the Legislature has not provided for special remedy in the Encumbered Estates Act.
4. On the question of the proper relief to which the plaintiff is entitled, we are of opinion that the suit should not be treated as one for accounts but should be treated as one for mesne profits. We, therefore, set aside the judgment of the learned Single Judge and send back the case to the Court of first instance with the direction that an enquiry be made as to the amount of mesne profits which accrued due between 15th November 1937 and 14th June 1939. This enquiry may be held before a commissioner, appointed in that behalf, who must report to the Court the result of the enquiry. After that is done and the parties have been heard on the report, a final decree will be passed in respect of the mesne profits. The appellant is entitled to his costs throughout in all the Courts.