A decree that erroneously directs mesne profits to be ascertained in execution is not a nullity and the court of execution is bound to execute it.

JUDGMENT :- The short point for determination in this appeal is, whether the direction to ascertain the mesne profits in execution is illegal and whether any order passed in execution ascertaining mesne profits is not executable.

2. The facts are : O. S. No. 211 of 1941 was filed for recovery of possession of certain lands with mesne profits. The suit was decreed for possession on 31-3-1943 and the question relating to mesne profits was left open for decision in execution. The decree was appealed against but it was confirmed by the appellate Court. Then execution applications were filed by the decree-holders for ascertainment of mesne profits. The learned District Munsif of Hosdrug, after due enquiry, ascertained the mesne profits as per the reports filed by the Commissioner appointed for that purpose.

One of the persons who was found to be so liable to pay the ascertained amount to the decree-holders, viz., defendant 8 in the suit and respondent 6 in the execution petition, filed an appeal. The main ground urged by the appellant was as set out at the outset. The lower appellate Court confirmed the order of the learned District Munsif that the direction to ascertain mesne profits in execution proceedings was not illegal and that the order passed in execution ascertaining the mesne profits was executable. Hence this appeal by the defeated defendant 8.

3. The provisions relating to mesne profits in the Code of 1882 were contained in Ss. 211, 212 and 244. Those provisions have now been re-cast in the Code of 1908. The definition of mesne profits is relegated to S. 2, cl. (12) and an important alteration has been made as regards the procedure in determining the amount of mesne profits. Under the Code of 1882, the amount of mesne profits was to be determined in execution proceedings : see cls. (a) and (b) of S. 244 of the Code of 1882.

Under the present rule the amount must be determined by the decree and not in execution. An application for ascertainment of mesne profits under R. 12 of O. 20 is not a proceeding in execution but a proceeding in continuation of the original suit : - Rudra Pratap Singh v. Sardar Mahesh Prasad Singh, 47 All 543 : (AIR 1925 All 588) (A); - Shanker v. Gangaram, 52 Bom 360 : (AIR 1928 Bom 236) (B); - Bhatu Ram v. Foga Ram, 5 Pat 223 : (AIR 1926 Pat 141) (C); - Timmaraju v. Narasimha Raju, 54 Mad LJ 665 : (AIR 1928 Mad 522) (D). The order of the trial Court therefore directing the executing Court to assess the mesne profits is an erroneous order. Raghubir Singh v. Secy. of State, AIR 1938 All 445 (E); - Secy, of State v. Raghubir Singh, 153 Ind Cas 574 : (AIR 1935 All 186) (F); see - Balaramcharya v. Chidambara Goundar, 40 Bom LR 416 : (AIR 1938 Bom 320) (G).

4. The next point which falls to be considered is whether this erroneous order is an illegal order which cannot be given effect to. In support of the proposition that it cannot be given effect to there is a decision by a single Judge of this Court in - Chandrakantam v. Chandramowliprasada, AIR 1949 Mad 134 (H), Govindarajachari, J. observed in the course of his judgment that the District Munsif did not observe the procedure prescribed under the Cede in the matter of ascertainment of mesne profits and that he ought not to have reserved the question for determination in execution and that the direction given by the District Munsif in the preliminary decree that the application must be one in execution is an unnecessary and incorrect addition and cannot be given effect to and that otherwise by an erroneous decree of the nature the Court would, not only lay down a separate law of procedure for the parties which is entirely at variance with the law of the land but would also be curtailing the period within which an application can be made by a successful plaintiff.

The learned Judge noticed a Bench decision of this Court in - Kemgam Swami v. Subbamma, 53 Mad 838 : (AIR 1930 Mad 30) (I), and held that though the position taken there was not quite logica