JUDGMENT Bennett and Madeley, JJ. - This is a Miscellaneous Appeal under Clause (s) of Order XLIII Rule 1 of the CPC against an order passed by the Additional Civil Judge, Lucknow, appointing the Deputy Commissioner of Unao and Kheri as Receivers of certain villages in these districts in the possession of the Appellant, Satgur Prasad alias Bhaiya Hari Saran Das, the management to be through the agency of the Court of Wards. 2. According to the statement of facts given in the order of the Court below a suit was instituted on the 21st February, 1927, by Mahant Har Narain Das against the Appellant to recover possession over an estate known as the Baba Hazara estate situate in six villages of the provinces of Oudh, together with mesne profits. The suit was decreed on the 28th November, 1927, and mesne profits were allowed from the 25th November, 1924, to the 12th January, 1928, the date when the decree-holder obtained possession. 3. In appeal to this Court the date from which mesne profits were allowed was altered to the 21st February, 1927, but the original date was restored on appeal to His Majesty in Council. 4. Prior to the decision of the appeal before the Judicial Committee the amount of mesne profits for the period from the 21st February, 1927, to the 12th January, 1928, had been determined at Rs. 1,25,000. This was in 1929, the decree being confirmed in appeal on the 10th January, 1930. 5. On the restoration of the original decree Mahant Har Narain Das applied for determination of mesne profits for the period from the 25th November, 1924, to the 21st February, 1927. The application was made on the 27th February, 1932. The Mahant died on the 26th December, 1933, and the present Respondent, Mahant Har Narain Das, was substituted as his legal representative. 6. A decree was passed in favour of the Respondent for Rs. 6,74,102/10/10 with future interest on about half this amount on the 23rd September, 1943; the decree is at present under appeal to this Court. 7. Application for appointment of a Receiver was made on the 13th May, 1942, but the parties agreed, it is said, that orders upon it should be deferred pending determination of mesne profits allowed by the Privy Council. 7. Application for appointment of a Receiver was made on the 13th May, 1942, but the parties agreed, it is said, that orders upon it should be deferred pending determination of mesne profits allowed by the Privy Council. The Respondent renewed his application, however, on the 8th March, 1939; the Appellant objected, but the application was allowed on the 20th March, 1943. It is this order which is the subject of the present appeal. 8. It will be observed that the order was passed before the amount of mesne profits due had been determined and there was therefore at the date of be order no decree which could be executed, that is in respect of the period restored by the Privy Council. Mesne profits for the later period from the 21st February, 1927, had been determined, but a claim had been made for them in proceedings under the Encumbered Estates Act. The Appellant had applied u/s 4 of that Act on the 5th September, 1935. The amount of mesne profits for the later period had been determined long before this, namely in 1930, and it is not disputed that the Respondent can claim this amount only before the Special Judge in the proceedings under the Encumbered Estates Act. He cannot apply in ordinary execution proceedings upon his decree. 9. The first objection which has been taken therefore to the appointment of a Receiver is that there was at the date of appointment no decree which could be executed. There was only the decree declaring that the Respondent was entitled to mesne profits for the earlier as well as the later period. 10. We may mention here that the Additional Civil Judge by his order of the 20th March 1943, directed that after payment of Government dues and local rates and expenses of collection and management the balance should be kept in deposit at the disposal of the Court. 11. Even if it be considered objectionable to appoint a Receiver in these circumstances before determination of the amount of mesne profits we do not think that the objection could be upheld now that the amount has been determined and decree therefor passed We should not be prepared to allow the appeal and set aside the order of appointment merely on account of this objection, if the objection is no longer valid. An appellate Court is entitled to take into consideration such a change in circumstances during the pendency of the appeal. 12. We have mentioned that the Appellant has applied for relief under the Encumbered Estates Act. No claims against him u/s 9 of that Act have yet been determined because questions of title u/s 11 have yet to be decided. Under Sub-section (3) of Section 11 the Special Judge shall determine all claims made under this section before he proceeds to determine the amount due to any creditor. 13. The principal contention which has been advanced on behalf of the Appellant is that the claim for mesne profits for the earlier period, as for the later period, should be made in these proceedings under the Encumbered Estates Act. Under the amended provisions of Section 9 a claim could still be made if it has not yet been made. We are informed however, that the Respondent's claim before the Special Judge covers the whole period from the 25th November, 1924. If the claim for mesne profits for the earlier period can validly be made in the proceedings under the Encumbered Estates Act, then no action in execution of the decree can be taken elsewhere and the order of the Additional Civil Judge must be set aside on the ground that his jurisdiction is barred by the provisions of Section 7 of that Act. There is no dispute about this, the controversy being as to whether when mesne profits are decreed against an applicant under the Encumbered Estates Act after he has made his application, the amount constitutes a debt within the meaning of that Act, due from the landlord to the claimant on the date of application u/s 4. That it must be so due that date is provided by Section 14. 14. "Debt" is defined in Section 2 of the Act as including any liability except a liability for unliquidated damages, and the question is whether the Appellant's liability for mesne profits, as pronounced by the Judicial Committee, constituted, until the amount had been determined, a liability for unliquidated damages. If so, it was not a debt upon which a claim could be made by the Respondent under the Encumbered Estates Act, and Section 7 would not therefore bar execution proceedings upon the decree. If so, it was not a debt upon which a claim could be made by the Respondent under the Encumbered Estates Act, and Section 7 would not therefore bar execution proceedings upon the decree. The fact that upon determination of the amount the damages are liquidated and a debt then comes into existence would not bring the claim within the mischief of the Act, if no debt was due at the date of the application. 15. On this question there are decisions both of this Court and of the Allahabad High Court which afford guidance. Where costs are claimed it has been held by a Bench of this Court, of which one of us was a member, in Hari Saran Das v. Har Kishan Das (1941) 15 Luck. 566 : O.A. 22 : A.W.R. (C.C.) 67 that a decree for costs must be treated as a decree for unliquidated damages, and is not therefore a decree obtained on the basis of a private debt within the meaning of Section 2. Consequently execution of a decree for costs passed after the commencement of proceedings under the Encumbered Estates Act is not barred by Section 7. In a subsequent case between the same parties (I.L.R. 16 Luck. 784) it was explained that such costs retrain unliquidated damages so long as they remain unascertained. Once they have been ascertained and declared they constitute a debt. 16. Learned Counsel for the Appellant has endeavoured to differentiate between costs and mesne profits, and he has cited Badri Dass v. Raja Birendra Bikram Singh (1939) 14 Luck. 106 to support his contention. But the decision in this case, as we understand it, was only that mesne profits, like costs, after determination constitute a debt. Referring to the definition of debt in the Encumbered Estates Act the Bench of this Court which decided the case observed. "The words 'any pecuniary liability' are wide enough in our opinion to include not only the costs payable to the second Appellant by the decree, but also mesne profits claimed by and awarded to him. These profits cannot in our judgment be said to be 'unliquidated damages' as their amount was fixed after inquiry by Court" 17. "The words 'any pecuniary liability' are wide enough in our opinion to include not only the costs payable to the second Appellant by the decree, but also mesne profits claimed by and awarded to him. These profits cannot in our judgment be said to be 'unliquidated damages' as their amount was fixed after inquiry by Court" 17. It was observed by the present Bench in Gauri Shankar v. Bhaiya Hari Saran Das 1944 O.A. (C.C.) 167 : A.W.R. (C.C.) 167 (1944 Oudh Appeals, 167) that in order to constitute a debt within Section 2 the sum claimed must be due when the order is passed by the Collector u/s 6 of the Act and the mere possibility of the landlord having to pay an amount at some future time does not constitute such a liability as is contemplated by the Act in the definition of debt. 18. The cases of the Allahabad High Court, Champa Devi v. Asa Devi 1937 A.W.R. 933 : A.L.J. 945 and Mukand Sarup v. Krishna Chandra Singh 1937 A.W.R. 1118 : A.L.J. 1139 are more directly in point. In these cases different Benches of this High Court held that a claim for mesne profits is a claim for unliquidated damages. In the first case it was said that-- "It is obvious that the amount of mesne profits to which the rightful owner of the property is entitled is not fixed either by an agreement or by some statute and depends on the result of the enquiry conducted by the Court with a view to ascertain the amount which the rightful owner of the property is entitled to get from the person in wrongful possession". 19. Reliance was placed on an observation of their Lordships of the Privy Council in Grish Chander Lahiri v. Soshi Shikhareshwar Roy (1901) 27 Cal. 951 that "Mesne profits are in the nature of damages which the court may mould according to the Justice of the case". 20. 19. Reliance was placed on an observation of their Lordships of the Privy Council in Grish Chander Lahiri v. Soshi Shikhareshwar Roy (1901) 27 Cal. 951 that "Mesne profits are in the nature of damages which the court may mould according to the Justice of the case". 20. Learned Counsel sought to distinguish between cases where there is uncertainty only as to the amount and cases where there is uncertainty as to liability also, arguing that if liability has been determined (as it has been by the Privy Council in this case) and all that remains is to determine the amount, that might be done by the Special Judge under the Encumbered Estates Act just as well as by the regular Courts, the amount being determined according to certain principles. He cited the Privy Council cases of Gurudas Kundu Chowdhury v. Hemendra Kumar Roy (1929) 56 I.A. 290 and Gray v. Bhagu Mian (1930) 57 I.A. 105. In the former case it was said that the mesne profits should be based upon the rent received by those in wrongful possession, not upon the produce value of the land. In the latter case it was said (with reference to the definition of mesne profits in Section 2(12) of the CPC as "those profits which the person in wrongful possession actually received or might with ordinary diligence have received") that-- "the sum to be awarded is not what the Plaintiff has lost by his exclusion from the land, but what the Defendant has made or might with reasonable diligence have made, by his wrongful possession." 21. Reliance was also placed on a case decided by a Bench of this Court, of which one of us was a member Nageshwar Prasad v. Balbhaddar Singh 1942 O.A. 40 : A.W.R. (C.C.) 62 : O.W.N. 55, in which it was held that a claim on account of rents and profits of agricultural land constitutes a debt within the meaning of the Encumbered Estates Act. That was a case between co-sharers and the question was whether the Special Judge had jurisdiction to try a suit ordinarily triable exclusively by a Revenue Court. No question of mesne profits and the nature of the liability therefore arose in it. 22. That was a case between co-sharers and the question was whether the Special Judge had jurisdiction to try a suit ordinarily triable exclusively by a Revenue Court. No question of mesne profits and the nature of the liability therefore arose in it. 22. Another Privy Council case referred to was Babu Jyoti Bhushan v. Babu Shiv Prasad Gupta (1943) 70 I.A. 209 : O.A. 36 : A.W.R. (P.C.) 36, but all that was held in that case that a decree for money, passed in a partition suit between members of a joint Hindu family, for purposes of equalizing the values of the allotted shares, is a debt within the meaning of the Encumbered Estates Act, but we are unable to see how this decision is relevant to the question under consideration. 23. Learned Counsel for the Respondent referred to Mulla's commentary on the CPC (page 726 11th Ed.) where it is said on the basis of various pronouncements including one by the Privy Council already cited: "The claim for mesne profits is virtually a claim for damages. Hence there is no rigid rule for determining the amount of mesne profits, and the amount must be assessed in every case by a proper exercise of judicial discretion. Mesne profits are in the nature of damages which the Court may mould according to the justice of the case. Hence in calculating mesne profits payments of revenue and cesses made by the Defendant should be deducted. But the costs of collecting the rents or profits should be allowed to the Defendant unless be entered on the property in the exercise of a bona fide claim of right". 24. The matter being so largely one for the discretion of the Court we think that we should not be justified in making the distinction sought to be drawn between mesne profits and costs. Following the Allahabad cases we hold that a claim for determination of mesne profits is a claim for unliquidated damages and as such not governed by the provisions of the Encumbered Estates Act. 25. Learned Counsel for the Appellant also argued that the appointment of a Receiver was not justified, both because the parties had agreed to wait until the amount of mesne profits had been determined, also because it is barred by the provisions of Sub-rule (2) of Rule 1 of Order XL. 25. Learned Counsel for the Appellant also argued that the appointment of a Receiver was not justified, both because the parties had agreed to wait until the amount of mesne profits had been determined, also because it is barred by the provisions of Sub-rule (2) of Rule 1 of Order XL. As regards the first objection there does not appear to have been any definite agreement; a decision on the application for the appointment of a Receiver was merely deferred with the concurrence of the parties: and we see no objection to the Court making the appointment if there was good reason to do so, even though at first it had proposed to wait until the amount of mesne profits had been determined. 26. As regards the other objection the Sub-rule reads: "Nothing in this rule shall authorized the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove." 27. There is a conflict of opinion on the point whether the words "any person" include a party to the suit and we have been referred to various authorities. The Allahabad High Court has held that the words include a party to the suit, and on this view the appointment of a Receiver in the present case would not be justified, but other High Courts have taken the contrary view. The question was considered by a Bench of this Court in Jai Dayal v. Jagdeo Narain 1939 O.A. 262 : A.W.R. (C.C.) 52 : O.W.N. 206, where the more general view was followed. It must therefore be considered concluded so far as this Court is concerned. 28. On the general question whether the appointment of a Receiver in the circumstances of the present case is "just and convenient" it may be said that the proceedings under the Encumbered Estates Act have been pending for some years and there does not appear to be any prospect of their termination in the immediate future. The income from the debtor's property is meanwhile his disposal and there appears to be no reason why a portion of it (his property in two only out of several districts in which he is said still to own property being affected) should not be acquired for the benefit of a creditor who cannot claim under the Encumbered Estates Act. The income from the debtor's property is meanwhile his disposal and there appears to be no reason why a portion of it (his property in two only out of several districts in which he is said still to own property being affected) should not be acquired for the benefit of a creditor who cannot claim under the Encumbered Estates Act. It was suggested in the course of argument that other proceedings in execution, such as sale of the property, might be taken by a creditor against whom the bar in Section 7 is not applicable. It is conceivable that such proceedings might give rise to difficulties arising from a conflict of jurisdiction between the Special Judge and the regular Civil Court. Something was said on this aspect of the matter in Hari Saran Das v. Har Kishan Das (1941) 15 Luck. 566 : O.A. 22 : A.W.R. (C.C.) 67. But there can be no possibility of conflict arising out of the present order until the decrees are sent to the Collector u/s 19 and meanwhile at least we see no objection to the Respondent realising what is possible in this way. On the contrary such realisation may obviate or lessen the possibility of a conflict later on. 29. For these reasons we hold that there is no objection to the order under appeal and we dismiss the appeal with costs.