1. This is an application in revision arising out of a proceeding in execution of a decree for arrears of profits. The applicant, Kunwar Shri Krishna, is the judgment-debtor. It appears that he is the lambardar of a mahal in which the opposite parties, Brahma Swarup and others are cosharers. The opposite parties brought a suit for arrears of profits under Section 226, Agra Tenancy Act, 3 of 1926. Sometime after the institution of that suit the present applicant, Kunwar Shri Krishna, made an application under Section 4, Encumbered Estates Act, which was in due course sent by. the Collector for disposal to the Special Judge. It is admitted that the period regarding which the suit for profits was instituted by the opposite parties was prior to the date of the application under the Encumbered Estates Act. The suit for profits ended in a degree on 31st October 1938. When this decree was put into execution by the opposite parties, the present applicant raised an objection that he was entitled to the protection of Section 7, U.P. Encumbered Estates Act. This objection was upheld by the learned Assistant Collector in whose Court the application for execution had been made and he directed the decree to be filed and the execution proceeding to be dropped. From this order the decree-holders opposite parties went in appeal to the District Judge who came to the conclusion that the decree sought to be executed being based upon a liability in the nature of unliquidated damages was not a debt within the meaning of the Encumbered Estates Act and hence the proceeding in execution of that decree could continue. Taking that view, he allowed the appeal and ordered that the proceeding in execution of the decree should be continued; hence the present application in revision.
2. The only question for consideration in this case is whether the liability of a lambardar who collects the profits of the landed property of which he is lambardar to pay the share of those profits to the other cosharers in the property is a liability for unliquidated damages within the meaning of Section 2 (a), U.P. Encumbered Estates Act. The learned District Judge has answered that question in the affirmative and has relied upon a decision of the Board of Revenue in Makhan Singh v. Kishan Lal ('41) 1941 R.D. 254. This case has not been put before me but from the judgment of the learned District Judge it would appear that the Board of Revenue held that arrears of profits were in the nature of unliquidated damages and, therefore, a suit for realisation of such arrears is not barred by the provisions of Section 7, U.P. Encumbered Estates Act. With great respect to the learned members of the Board of Revenue I am unable to agree with the view taken by them. In my judgment, the liability of the lambardar who collects the income to pay the other cosharers their share of that income is undoubtedly a pecuniary liability and no question of damages arises at all in connexion with that liability. The right of the other cosharers to get a share out of the income of the property has to be ascertained on the basis of the revenue papers and though the liability of the lambardar may vary from year to year for various reasons yet it is not possible to argue that this liability partakes in any sense of the nature of damages. Arrears of profits cannot, in my judgment, be placed on the same footing as mesne profits which are damages for wrongful possession. A suit for mesne profits would undoubtedly ' be a suit to enforce a liability for unliquidated damages as held in Champa Devi v. v. Asa Devi : AIR1938All8 and such a suit would not be barred by Section 7, Encumbered Estates Act. The considerations which apply to mesne profits do not in my judgment apply to profits and the liability of a lambardar to pay their share of the profits to other cosharers is clearly a pecuniary liability which falls within the definition of 'debt' in Section 2 (a), U.P. Encumbered Estates Act. A decree for arrears of profits cannot, therefore, be said to be based upon any liability for unliquidated damages. I am, therefore, of the opinion that the view taken by the learned District Judge in this case was wrong and the objection raised by the applicant that he was entitled to the benefit of Section 7, U.P. Encumbered Estates Act, should have been allowed to prevail. The result, therefore, is that I allow this application in revision and setting aside the order of the learned District Judge I restore the order passed by the learned Assistant Collector. The applicant shall get his costs from the opposite parties.