The time taken up in the prosecution of an appeal against an order fixing mesne profits cannot be deducted while computing the period of limitation for an application for execution of the decree, because such an appeal is not an appeal against an executable decree.

1. On 13th April 1932, one Chandanmal Jasraj filed suit No. 472 of 1932 for possession of an immoveable property and for past and future mesne profits. The suit resulted in a decree, which was passed on 9th September 1933. The defendant filed an appeal against that decree, but that appeal was dismissed on 27th November 1935, as having abated on account of the heirs of the plaintiff, who had died in the meantime, not having been brought on record. The defendant thereafter filed an application for review of the order dismissing the appeal but that application was also dismissed on 8th June 1936. In execution of the decree, Suratsing, the adopted son of the deceased plaintiff Chandanmal, recovered possession of the property on 13th March 1949. A few days thereafter, i. e. on 8th April 1949, he made an application to the trial Court for ascertainment of the inesne profits from 13th April 1932, i. e. the day on which the suit was filed till 13th March 1949, when possession of the property in question was recovered by him. It appears that in this application Suratsing had omitted to mention the fact that the defendant had filed an appeal against the decree in the suit. Suratsing accordingly filed an application on 18th January 1951 for amendment of the aforesaid application so as to incorporate the date of the dismissal of the appeal by the defendant. Somehow or the other, however, the amendment of the application, which was granted on 3rd February 1951, was not properly carried out. In other words, apart from other things, the date 13th April 1932, which had appeared in the application was scored out and instead the date 27th November 1935 was, substituted in its place. This amendment does not seem to have been noticed by Suratsingh for about two years. On nth February, 1953, after he came to know of the errors in the amendments made in the main application, Suratsing filed another application for amending the main application so as to indicate that the mesne profits that were prayed for were from 13th April, 1932, on which date the suit for possession was filed and for a period of three years subsequent to the final disposal of the appeal by the District Court; This application was granted by the Court. But it appears that no further amendment of the main application was carried out in pursuance of the order. On 24th July, 1953, the application for ascertainment of mesne profits was heard by the Court and by an order made on that day, the mesne profits were fixed for a period of three years at the rate of Rs. 25/- per month from 27th November, 1935, to 27th November, 1938. (It may be remembered that it was on 27th November, 1935, that the appeal, which was filed by the defendant against the decree, was dismissed by the Court). The order further directed that the decree in terms thereof shall be drawn up on Suratsingh paying the necessary Court fees in respect of the amount awarded to him as mesne profits. Being aggrieved by this order, it appears, Suratsing filed an application, Exhibit 63-A, on the game day praying that the order be reviewed and it may be corrected so as to allow mesne profits also from the date of the suit, i. e., 13th April, 1932. Sometime after this application was filed, Suratsing also filed an appeal against the order dated 24th July, 1953, being appeal No. 406 of 1953, in the District Court. This appeal was dismissed on 5th January, 1955, on the ground that since no executable decree was drawn up on account of the plaintiff hawing failed to pay the necessary Court fee for the amount of mesne profits, that was ascertained by the Court by its order dated 24th July, 1953, and the appeal was not from such decree, the appeal was not maintainable. The application, Exhibit 63-A, on the other hand was also dismissed on 22nd April, 1957. The reason for dismissing this application as given by the learned joint Civil Judge, Junior Division Ahmednagar, was that it was Suratsing himself, who had failed to carry