JUDGMENT

Bennett and Ghulam Hasan, JJ. - The question raised in these appeals, Nos. 38 and 39 of 1941, is whether, when a person has obtained a decree for costs and the decree is under appeal, it is necessary for him to prefer a claim for the amount decreed against a judgment debtor who has applied u/s 4 of the U.P. Encumbered Estates Act. The Civil Judge of Hardoi answered this question in the negative, and these appeals have been filed against that decision.

2. The Appellants are two widows. Rani Suraj Kunwar and Rani Gokaran Kunwar. They applied u/s 4 of the Encumbered Estates Act on the 29th October, 1936. They were the widows of one Gaya Bakhsh Singh who had been a party to litigation relating to the title to the Bharawan estate. That estate had been claimed by three persons, Deo Singh, Koeli Singh and Gaya Bakhsh Singh himself. The first two had instituted suits. Deo Singh succeeded in respect of the taluqdari property, it being held that Gaya Bakhsh Singh was entitled to the non-taluqdari property. Koeli Singh's suit was dismissed. Koeli Singh filed two appeals which were dismissed on a compromise. Gaya Bakhsh Singh filed an appeal from the decision of the single Judge of this Court in Deo Singh's suit to a Bench and that appeal was dismissed with costs on the 22nd January, 1934. Gaya Baksh Singh applied for leave to appeal to His Majesty in Council and leave was granted. This appeal was dismissed on the 24th Jaunary, 1938.

3. In appeal No. 38 of 1941 the Respondent is the Deputy Commissioner, Hardoi, in charge of the Court of Wards, Bharawan estate, the estate having remained under the Superintendence of the Court of Wards from 1926, when one Rani Deo Kuar, widow of the previous taluqdar, Raja Madho Singh, was in possession. The litigation referred to occurred upon her death on the 12th December, 1930.

4. The Respondent in appeal No. 39 of 1941 in Dr. B.N. Verma to whom Deo Singh's mother, acting as his next friend, sold a portion of the estate for Rs. 40,000 in order to raise money for this litigation and other purposes. Dr. Verma was made a party to the appeals, both to those of Koeli Singh, which were compromised, and to that of Gaya Bakhsh Singh.

5. The questions for considerations in these appeals are whether the Respondents should have preferred claims (in respect of the costs awarded by this Court) under the Encumbered Estates Act against the Appellants, who were substituted for Gaya Bakhsh Singh upon his death during the pendency of the Privy Council appeal, and whether, as they failed to do so, these claims must be deemed to have been duly discharged according to the provisions of Section 13 of the Encumbered Estates Act.

6. The Civil Judge who answered these questions in the negative relied on a Bench decision of this Court, Hari Saran Das v. Har Kishan Das 1941 O.W.N. 103 : 16 Luk 566 : O.A. 22 : A.W.R. (Rev) 67 for the proposition that a decree for costs is not a decree on the basis of any private debt within the meaning of Section 2 of the Act. The headnote in the Indian Law Reports shows that it was only intended to hold that execution of a decree for costs passed after the commencement of proceedings under the Encumbered Estates Act is not barred by Section 7(3) of the Act. The position was further explained in N. Mirza Mohammad Sadiq Alt Khan v. N. Fakhr Jahan Begam 1941 O.A. 25 : A.W.R. (Rev) 70 : 16 Luck 591 and Hari Saran Das v. Har Kishan Das 1941 O.A. 403 : A.W.R. (Rev) 359 : 16 Luck 784. The headnote to the latter case reads as follows:

"A decree for costs is a decree passed on the basis of unliquidated damages, costs being unliquidated damages so long as they remain unascertained, and is not a debt within the meaning of Section 2(2) of the United Provinces Encumbered Estates Act. But once costs have been declared and ascertained they constitute a debt".

7. It is, therefore, quite clear that the learned Civil Judge was not justified in holding, for the reason given by him, that it was unnecessary for the