JUDGMENT Madeley and Walford, JJ. - In this second appeal the question is whether a suit for profits is maintainable by a mortgagor against a mortgagee for the period intervening between the application u/s 4 of the Encumbered Estates Act and the date of the decree. 2. In the present case the mortgagee was under the terms of the mortgage to be in possession of the mortgaged property for 8 years in lieu both of principal and interest on the debt. The question so far as it relates * to interest is covered by the proviso to Section 14 added by the amending Act XI of 1939, ''Provi- ded that no pendente lite interest shall be allowed in the case of any debt where the creditor was in possession of any por-' tion of the property in lieu of . interest payable on such debt." The present case is somewhat different ' from the one contemplated by this proviso because the question of principal also comes in. 3. The facts of the case are that Ram Paltan appellant No. 1, who is father of appellants 2 to 4, mortgaged his ancertral zemindari share of village Ajatapur with the respondent Murlidhar for Rs. 9,000. Under the terms of the deed the mortgage was to retain possession of the mortgaged property for 8 years and was then to deliver possession of the propeprty to the mortgagor free of the encumbrance with the stipulation that the mortgage money would be satisfied from the usufruct of the property. This mortgage deed is dated the 14th August, 1934, but the mortgage did not run. its full course, since, on the 29th October, 1936, Ram Paltan made an application u/s 4 of the Encumbered Estate Act. On the 5th April, 1939, the Special Judge passed a decree u/s 14 sub-section 7 of the Encumbered Estates Act for Rs. 5,000 in favour of Murlidhar with pendente lite and future interest at 4 1/2 per cent per annum. 4. Ram Paltan recovered possession of the mortgaged, property on the 31 August, 1939. He now claims profits of the property from the date of his application u/s 4 of the Encumbered Estates Act up to the time when he recovered possession, that is from the 29th October, 1936 to the 31st August, 1939. 4. Ram Paltan recovered possession of the mortgaged, property on the 31 August, 1939. He now claims profits of the property from the date of his application u/s 4 of the Encumbered Estates Act up to the time when he recovered possession, that is from the 29th October, 1936 to the 31st August, 1939. For these profits he brought a suit in the Court of the Civil Judge and obtained a decree for Rs. 3,049-12 with proportionate costs and future interest at 3 1/4 per cent per annum. 5. Against this decision an appeal was filed by Murlidhar, and the learned District Judge of Gonda, who tried the case, held that the Special Judge had no jurisdiction to take into consideration payments made after the date of the application u/s 4 and therefore there could be no bar to a civil suit for profits for the period subsequent to that application. The mortgage was extinguished by the passing of the decree on the 5th April, 1939, and therefore it was not open to any party to seek any remedy under the mortgage or claim any right thereunder. Therefore its term had no bearing on the present suit. He, how- ever, held that since the definition of mesne profits shows that they can only be claimed against a person in wrongful possession of the property and it is im- possible to hold that the possession of Murlidhar became wrongful from the date of the application u/s 4, because he had a perfect right to remain in possession up to the 5th April, 1939, the date of the decree u/s 14 (7), the claim for mesne profits from the 29th October, 1936 to the 5th April, 1939 must fail. As to the awarding of pendente lite interest by the Special Judge, the District Judge found that Ram Paltan should have ' applied to get the decree amended under the proviso to Section 14(7). 6. The learned District Judge therefore allowed mesne profits only for the period between the 5th April, 1939 and the 31st August, 1939 and gave a decree for Rs. 76-9. 7. Against this decision Ram Paltan and his sons have come in second a'ppeal to this Court. 8. There are three main grounds -in the appeal: (a) that the possession of the respon- dent became wrongful from the date of the application. 76-9. 7. Against this decision Ram Paltan and his sons have come in second a'ppeal to this Court. 8. There are three main grounds -in the appeal: (a) that the possession of the respon- dent became wrongful from the date of the application. (b) that, alternatively, the respondent's liability to refund the benefit received by him arose by virtue of his possession as a trustee or agent, and (c) that the Court could have determined the amount of profits realized. 9. The lower Court decided that there was no evidence on the record to prove what the mesne profits were. In the grounds it is pleaded that it should have taken the profits to be what was implied in the mortgage deed, viz. 9,000/8 =Rs. 1,125. In Exh. A-l the parties compromised and agreed that a decree for Rs. 5,000 be passed. This adds nothing to the argument. 10. As to the first point, viz., that respondent was in wrongful possession from the date of the application u/s 4, it has been given up in arguments. On the contrary, learned Counsel argues that the lower Court made a mistake in thinking that Ram Paltan had sued for mesne profits at all. This mistake had led to the dragging in of the definition of mesne profits and the consideration of the question whether Murlidhar had been wrongful possession. 11. It is argued that Ram Paltan's cause of action did not arise from Murlidhar's wrongful possession, but that Murlidhar was in possession from the date of the application u/s 4 as constructive trustee of the property. 12. Appellants' learned Counsel cites three decisions : Abu Jafar v. Raghoindra Pratap Sahai (1925) 2 OWN 826 at p. 829, a separate suit lies for any items received after the mortgagor has paid into Court the full amount declared due by the preliminary decree," Vairappa Thevan v. Subbidh Thevan (1918)44 I C 251 (Mad.) , A suit lies for mesne profits after date of payment under a preliminary decree in a suit for redemption of mortgage, the mortgagor's remedy not being confined to a claim for adjustment ol accounts at the time of the passing of the fina decree. 13. Counsel states that in this last decision the term "mesne profits" is loosely used. 14. Rukhminibai v. Venkatesh Bab Prabhu (1907) 31 Bom. 527. 13. Counsel states that in this last decision the term "mesne profits" is loosely used. 14. Rukhminibai v. Venkatesh Bab Prabhu (1907) 31 Bom. 527. From the date of the tender or of the deposit, as the case may be, the (mortgagee continues as mortgagee hut with a statutory liability to account for the profits received by him from that date. He is not then a mere trespasser but a mortgagee 'Still, holding the property as a kind of trustee for the mortgagor and as such accountable to the latter for the profits.'' 15. According to our interpretation of Section 18 of the Encumbered Estates Act the claimant's rights under the mortgage are extinguished from the date of the passing of the decree, not from the date of the application u/s 4, of the Encumbered Estates Act, and this seems to be the view taken in a Bench decision of the Allahabad High Court cited in Dharam Singh v. Chajju Singh 1945 AWR (HC) 224 : OWN (HC) 259. Since the Special Judge takes the account only up to the date of the application u/s 4, there should be some provision for the period intervening between the date of the application and the date of the simple money decree. So far as interest is concerned this is covered by the proviso to Section 14 (7). But in the present case the question of capital also arises. This question was dealt with in a Bench decision of the Board of Revenue, Vilayat Ali v. Mohammad Ismail 1942 AWR (Rev.) 481 : OA (Sup) 507 : RD 939. The headnote is : Where a simple money decree with pendente lite and future interest is passed in favour of a usufructuary mortgagee Section 14(7) of the Encumbered Estates Act the debtor applicant is entitled to have the profits of the property enjoyed by the mortgagee from the date of the application u/s 4 up to the delivery of possession u/s 33. set-off against the decree. The Collector acting under Chap. V, of the Encumbered Estates Act is an executing Court executing the decrees of the Special Judge. set-off against the decree. The Collector acting under Chap. V, of the Encumbered Estates Act is an executing Court executing the decrees of the Special Judge. Since there is no provisin in the Encumbered Estates Act for a claim to set-off, section 47, C. P C. applies ami this empowers the collector and the S. D. O. to determine all questions arising between the parties or their representatives and rehting to the execution, discharge, or satisfaction of the decree of the Special Judge. A claim to set off can therefore be entertained by the S.D.O. in liquidation proceedings u/s 47, p. P. C. A claim to set-off cannot be) treated as a claim to part adjustment of the decree under O. 21, R. 2(2), C.P.C. because for adjustment under that rule there must be an agreement between the parties relating to the execution of the decree and there can be no such agreement in a claim to set- off. Since O. 21, R. 2, C. P. C. does not apply and there is no express provision for such an application for set-off, there is no.limitation, and the S. D. O. has jurisdiction to entertain the claim at any time while executing the decree. 16. It is argued (1) that even supposing the Collector has power to set oil' these realisations that does not bar the jurisdjc- tioa of a Civil Court to entertain a suit for their recovery; (2) that there is nothing in the Encumbered Estates Act to show that the Collector is an execution Court and (3) the Hon'ble High Court at Allahabad in Dharam Singh v. Chhajju Singh4 has differed from the Board of Revenue on this point. (1) Section 47 of the Encumbered Estates Act says except as provided in Sections 45 and 46 (Appeal and revision) no proceedings of the Collector or Special Judge under this Act shall be questioned in any Court. It cannot be said that this section applies in terms to such a case as the present, because there is no calling into question of the proceedings either before the Special Judge or the Collector. It cannot be said that this section applies in terms to such a case as the present, because there is no calling into question of the proceedings either before the Special Judge or the Collector. The period between the application u/s 4 and the simple money decree has not been taken into account by the Special Judge and the Civil Court is not questioning the proceedings of the Collector in liquidating the debt found due by the Special Judge, but merely giving a decree for money to the plaintiff in respect of a period not covered by the findings of the Special Judge. It follows that there is no bar in the Encumbered Estates Act to the filing of a suit like the present, as has been found by both the Courts below. There must, however, be some bar to the plaintiff's obtaining an executable decree in the Civil Court and also a set off in the liquidation proceedings at the same time. We are inclined to think that the appellants' contention that the Collector is not an execution Court in the ordinary sense of the words is correct, but that he has all the powers of an execution Court. He has many other powers in liquidation proceedings, which may well be considered, when regarded in their entirety, as original civil miscellaneous proceedings. In that case section 10 read with Section 141, C. P. C. bars the trial of the suit while proceedings before the Collector are going on. (2) The Collector has to execute the decrees by special methods and has many alternative powers of a very wide nature in these miscellaneous proceedings before him. Section 24 (4) provides that for realising the value of the debtor's property under this section the Collector may exercise all the powers of a Civil Court for the execution of a decree. By Section 22 it is provided that the Collector shall allow the debtor a period of two months within which he may pay into Court the whole or any part of the amount due from him. By Section 22 it is provided that the Collector shall allow the debtor a period of two months within which he may pay into Court the whole or any part of the amount due from him. We think it can scarcely be said that the Collector has not the jurisdiction to take into consideration payments made sub- sequent to the filing of the application u/s 4, and if he can do this, there seems to be no reason why he cannot take into consideration profits realised by the mortgagee in the interval between the filing of the application u/s 4 and the passing of the decree u/s 14 (7). As we stated under (1) we think that the Collector is not merely an execution Court, but has all the powers of an execution Court. (3) Dharam Singh v. Chajju Singh4 decides that where a mortgagee has given a theka to his mortgagor and the latter gets a simple money decree u/s 14 (7), Encumbered Estates Act, but the mortgagee holds on to the property, the mortgagee cannot get a decree for rent against the thekadar mortgagor for the period subsequent to the simple money decree u/s 14 (7). We cannot see how this has overruled the decision of the Hon'ble Board of Revenue. 17. In our opinion this suit could not legally be tried while the liquidation proceedings were going on before the Collector. On the question of equity we find that out of the decree for Rs. 5,000 in favour of Murlidhar he has only obtained Rs. 800 (vide the copy of the "Final Scheme" filed in this Court. 18. We also find that there is no evidence on this file to show what: profits were actually realized by the defendant. 19. Under the terms of his mortgage, which was still in force during the period in question, he was exempt from keeping accounts (Section 77, Transfer of Property Act). The burden of proving what defendant had realized, or with reasonable diligence ought to have realized during the period in suit lay upon the plaintiffs. The general information contained in the mortgage deed and in Ex. A-1 is not sufficient to discharge the onus from the plaintiffs' , shoulders. The burden of proving what defendant had realized, or with reasonable diligence ought to have realized during the period in suit lay upon the plaintiffs. The general information contained in the mortgage deed and in Ex. A-1 is not sufficient to discharge the onus from the plaintiffs' , shoulders. We, therefore, agree with the lower Court in thinking that the plaintiffs, even if they had otherwise been entitled to a decree, have not brought the necessary evidence on the record. 20. We dismiss this appeal with costs.