Niamat-ullah and Ismail, JJ.:— This is an applicable in revision under section 115 of the Code of Civil Procedure against an order passed by the Civil Judge of Bulandshahr confirming a previous order passed by his predecessor staying a suit pending before him. The stay was ordered under section 7 of the Encumbered Estates Act as the defendants had represented to the court that they had applied to the Collector under section 6 and that their application had been forwarded to the Special Judge. The suit has been brought by the plaintiff applicant for three reliefs, (1) for possession, (2) mesne profits with effect from 1333 Fasli, and (3) Rs. 2,500, with interest, being the profits due to him from the defendants in respect of 1332 Fasli. It is alleged in the plaint that the parties to the suit are mortgagees under a deed dated the 17th of August, 1904, executed by persons who are no parties to this litigation. By an agreement, dated the 21st of October, 1924, it was stipulated that the plaintiff would be given by the defendants possession of certain villages in lieu of his 3/5ths share in the mortgagee rights with effect from the beginning of 1333 Fasli, that they (the defendants) would pay Rs. 2,500 to the plaintiff in respect of the latter's share of the profits for the year 1332 Fasli and that in case the defendants failed to deliver possession as agreed they would be liable to pay Rs. 4,000 as damages. It is alleged in the plaint that the defendants failed to give possession in terms of the agreement. It is also alleged that the defendants did not pay the sum of Rs. 2,500 which they had stipulated to pay as profits for 1332 Fasli. Accordingly the plaintiff claimed three reliefs, namely (1) recovery of possession, (2) mesne profits, tentatively fixed at Rs. 4,000, and (3) the sum of Rs. 2,500, being the profits for the year 1332 Fasli.
During the pendency of the suit the defendants applied to the Collector under section 6 of the Encumbered Estates Act. Their application was admitted and forwarded to the Special Judge. The lower court, professing to act under section 7 of the Encumbered Estates Act, stayed the proceedings of the suit pending his court. The plaintiff subsequently moved the court to reconsider its order of stay, pointing out that the suit was not only in respect of a debt but also for other reliefs. The lower court, however, confirmed its order of stay as regards the whole suit. The plaintiff has applied to this Court in revision.
Section 7(1)(a) of the Encumbered Estates Act provides that all proceedings pending at the date of the said order (Collector's order under section 6) in any civil or revenue court in the United Provinces in respect of any public or private debt to which a landlord is subject or with which his immovable property is encumbered shall be stayed. The suit which has given rise to this revision, so far as the plaintiff claims the relief of possession, is obviously not one in respect of any debt. So far as it is for mesne profits it is equally, in our judgment, not one for a “debt”, which is declared by the Act to include any “pecuniary liability, except a liability for unliquidated damages.” Mesne profits are unliquidated damages. They have been defined in the Code; of Civil Procedure as meaning profits payable by a person in wrongful possession of the immovable property. This view is in accord with what has been held by another Division Bench of this Court, in Champa Devi…(Defendant); v. Asa Devi…(Plaintiff).*(1). As regards the claim of Rs. 2,500, being the profits for 1332 Fasli, there can be no doubt that it is a debt as contemplated by the Encumbered Estates Act.
The position then is that we have a composite suit in which two reliefs are not affected by section 7 of the Encumbered Estates Act while the third is such that the suit in respect thereof must be stayed. Any difficulty that may arise in staying a suit so far as it is for some reliefs and not as regards the rest is, in our opinion, easily met by applying the provisions of order II, rule 6 of the Civil Procedure Code which provides: “Where it appears to the court that any causes of action joined in one suit cannot conveniently be tried or disposed of together, the court may order separate trials or make such other order as may be expedient.” In a suit like the one before us it is not desirable, and may be even unjust, to stay it so far as the plaintiff claims possession and mesne profits. Proceedings under the Encumbered Estates Act before the first court and all the courts of appeal may take a considerable length of time. The suit for possession and mesne profits should not be held up till the proceedings before the Special Judge are finished. We think that in the circumstances of the case the court should order separate trial of the suit so far as it relates to the cause of action in respect of the sum of Rs. 2,500 and qua that cause of action the suit should be stayed. With regard to the rest it should proceed.
We think that the court acted with material irregularity in the exercise of its jurisdiction in ordering the stay of the suit in its entirety. We also think that the court failed to exercise its jurisdiction which it undoubtedly possessed to order a separate trial of two sets of causes of action disclosed by the plaint. The result is that we allow this revision with costs, and set aside the orders of stay passed by the lower court, which is directed to act according to law as herein indicated.