1. This is a second appeal from a judgment and decree of the learned District Judge of Basti dated 9th February 1946.
2. The relevant facts can be very shortly stated. The appellant applied for the benefit of the United Provinces Encumbered Estates Act, and in due course an order was made by the Collector under Section 6 of that Act forwarding the appellant's application to the Special Judge. Subsequently the respondent brought a suit against the appellant for the recovery of certain mesne profits, and on 29th May 1911, he obtained a decree. It is not clear whether the claim to mesne profits arose before or after the passing of the order under Section 6, but that in my opinion is immaterial. On 15th May 1944, the respondent sought to execute his decree by the attachment and sale of certain Zamindari property belonging to the appellant. The appellant contended that in view of the provisions of the Encumbered Estates Act the decree could not be executed and that in any case his Zamindari property could not be proceeded against. The learned Civil Judge was of opinion that the decree could be executed, but not against the appellant's Zamindari property. The learned District Judge took the view that the decree could be executed against that property, and he accordingly allowed the appeal. It is from that decision that this present appeal has been filed.
3. It has not been disputed in this Court that the respondent was not debarred by anything in the Encumbered Estates Act from obtaining a decree against the appellant for mesne profits, and the question is whether there is any provision in the Act which restricts the right which the respondent has under the ordinary law to execute that decree against the zamindari property of his judgment debtor. It is contended that Sub-section (3) of Section 7 of the Act has that effect. That subjection provides, in circumstances which apply, in this case, that
'no decree obtained on the basis of any private debt incurred after the passing of the order under Section 6, shall be executed against any of the landlord's proprietary tights in land mentioned in the notice published under Section 11. . . . . . . .'
The zamindari property against which the respondent seeks to execute this decree was mentioned in the notice published under Section 11. Now 'private debt' is defined in Section 2 of the Act as any debt other than a public debt; 'public debt' as a debt due to the Crown or local authority and 'debt' as including any pecuniary liability except a liability for unliquidated damages.
4. A claim for means profits is not a claim for unliquidated damages, and accordingly a liability for the former is not a debt within the meaning of the Encumbered Estates Act ; Mukand Sarup v. Krishna Chandra : AIR1938All86 . It follows, therefore, that a decree for mesne profits is not such a decree as is referred to Sub-section (3) of Section 7 of the Act, and the decree-holder's right of execution against the zamindari property of his judgment-debtor is not affected.
5. It has been objected that this view will result in an anomaly not intended by the framers of the Act. Suppose, it is said, that owing to the negligence of C two persons, A and B, are injured. Each has a claim for unliquidated damages against C. A brings a suit and obtains a decree. C then applies for relief under the Encumbered Estates Act, and after an order has been made under Section 6-B brings a suit for damages against C and also obtains a decree. A cannot execute his decree for the decree is itself obviously a debt within the meaning of the Act, while B is left free to do so. That, I think is the position, and the anomaly does arise. The provisions of Sub-section (3) of Section 7 are however in my opinion clear, and this Court must give effect to them. The remedy, if the subjection does not reflect the intention of the framers of the Act, (SIC) with the legislature.
6. In my judgment the conclusion reached by the learned District Judge was right, and this appeal is accordingly dismissed, with costs.