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. 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. 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 decree-holders to file their claim to costs awarded by this Court in the proceeding under the Encumbered Estates Act. It is not now disputed that they could not file their claim to the costs awarded in Privy Council appeal and the order of the Civil Judge must, therefore, be upheld so far these costs are concerned. 8. Learned Counsel for the Court of Wards has, however, advanced another argument in support of the decision. He has contended that it is not necessary to prefer a claim upon a decree for costs when that decree is under appeal or liable to be appealed, the decision not being final and the decree being one which may be extinguished by merger in the decree of the final appellate Court. He concedes that on this view no distinction can be drawn between a decree for costs and any other money decree, such as a decree passed on foot of a promissory note. The contention, therefore, amounts to this that no claim can be put forward by a creditor under the Encumbered Estates Act upon the basis of a decree unless and until that decree has become final. He admits that he can produce no authority to support this view and so far as we are aware, it has never been advanced before. It was said by a Bench of this Court in Brindra Bikrm Singh v. Bajrang Bahadur Singh 1942 O.A. 495 : A.W.R. (C.C.) 338 : O.W.N. 648:-- "Claims can and must be made under the Act in respect of decrees which have been obtained prior to the application u/s 4, irrespective of whether an appeal is pending or may be preferred against them." 9. This view is supported, we think, by the provisions of Section 7 of the Encumbered Estates Act which provide that appeals shall not be stayed when the Collector has passed an order u/s 6. 10. We must hold, therefore, that it was incumbent upon the decree holders to file their claims to these costs in the proceedings under, the Encumbered Estates Act and upon their failure to do so they must be deemed to have been duly discharged. 10. We must hold, therefore, that it was incumbent upon the decree holders to file their claims to these costs in the proceedings under, the Encumbered Estates Act and upon their failure to do so they must be deemed to have been duly discharged. 11. We find, however, that while the Court of Ward's execution application was "for realisation of the costs of the suit, the appeal in the Hon'ble the Chief Court of Oudh and the appeal before their Lordships or the Privy Council." Dr. Verma's application was" for realisation of the costs of the appeal before their Lordships of the Privy Council by attachment and delivery of Rs. 4000 deposited in this Hon'ble Court as security of the costs of the Privy Council appeal under Order 45 Rule 7 of the Code of Civil Procedure". For reasons we have given the order of the Civil Judge rejecting the objection of the Appellants against this application must be upheld, even though for other reasons we have held in a connected appeal that Dr. Verma is not entitled to execute this decree. We accordingly dismiss appeal No. 39 of 1941 with costs. 12. We allow appeal No. 38 of 1941 and hold that the objection of the Appellants that the execution application of the Court of Wards is not maintainable in view of the provisions of Section 7 of the Encumbered Estate Act must be upheld so far as it relates to the costs awarded by the trial Court and this Court in appeal. It is, however, maintainable in respect of the costs awarded in the appeal to His Majesty in Council. It follows from what we have said that the debt arising from the award of costs in this Court must be deemed to have been discharged u/s 13. The Appellants in this appeal will get their costs in this Court as well as in the lower Court from the Respondent.