Arun Kumar Jha, J.—The instant petition has been filed under Article 227 of the Constitution of India by the petitioner for setting aside the order dated 16.01.2017 passed by the learned Sub Judge 2nd, Kaimur at Bhabhua in Execution Case No. 05 of 1996 whereby and whereunder the learned Executing Court directed the judgment debtor to pay Rs.1,73,920/- to the decree holder as mesne profits.

2. Briefly stated, the facts of the case are that the respondent no. 1/respondent 1st set was the plaintiff in Title Suit No. 64 of 1986 and he filed a suit for recovery of possession over the suit land as well as for mesne profits. It has been pleaded by the plaintiff that the defendants were in need of money for purchase of tractor and they executed three sale deeds on 31.10.1983 with respect to suit property as mentioned in Schedule ‘Ka’ of the plaint for Rs.15,000/- but only part payment of Rs.5,000/- was made at the time of execution of the sale deed. Subsequently, the plaintiff paid remaining consideration amount of Rs.10,000/- but possession of the property was not delivered by the defendants and as such the plaintiff filed the title suit seeking relief of recovery of possession as well as the mesne profits. The petitioner and respondent 2nd set were the defendants. The suit was decreed ex parte by the learned Sub Judge, Bhabhua vide judgment and decree dated 05.09.1988 and 26.11.1988, respectively with a direction to the defendants to deliver the title of the plaintiff over the suit land. The learned trial court further decreed that the plaintiff could recover the mesne profit of Rs.7950/- through the process of the court. It further appears that the defendants filed a miscellaneous case under Order 9 rule 13 read with Section 151 of the Code of Civil Procedure (in short “the Code”) for setting aside the ex parte decree but the miscellaneous case of the defendants was dismissed for non prosecution on 17.11.1997. Further case of the petitioner is that though the plaintiff came in possession over the land in question after the ex parte judgment and decree in the year 1988, in order to harass the defendants, he filed an execution case in the year 1996 bearing Execution Case No. 05 of 1996 for execution of the decree with the prayer for recovery of possession as well as mesne profit. In the execution case, the Survey Knowing Pleader Commissioner was appointed by the Executing Court for determination of mesne profits who submitted his report dated 17.05.2014 in the Executing Court giving details of mesne profits amounting to Rs.1,73,920/- holding that the plaintiff was entitled for mesne profits from the year 1986 to 2005. The defendant/petitioner coming to know about ex parte Commissioner’s report, filed his objection in the Executing Court on 03.01.2016 stating therein that the decree holder was in peaceful possession over the land in question. The plaintiff has paid the entire consideration money. The defendant/petitioner further submitted that the report of Survey Knowing Pleader Commissioner was not based on factual aspect of the matter rather it was a report prepared at table and the decree holder/respondent 1st set was not entitled for mesne profit. The learned Executing Court did not consider the objections raised by the petitioner and vide order dated 16.01.2017 directed the judgment debtor to pay Rs.1,73,920/- to the decree holder as mesne profits.

3. Learned counsel for the petitioner submitted that the impugned order is not sustainable as it is illegal and has been passed without consideration of specific provision of law. The learned Executing Court has not considered the fact that it has got no jurisdiction to determine the mesne profit when there is no decree by the trial court on the basis of enquiry as laid down under Order 20, Rule 12 of the Code. The impugned order is not based on correct appreciation of the legal as well as factual aspects of the matter. The Executing Court passed the order for payment of mesne profits o