The main legal point established in the judgment is that a decree, though framed generally for mesne profits, should be reasonably construed as awarding future mesne profits as well if there is nothing in the decree standing in the way of such a construction.

Venkatasubba Rao, J.

1. The point arises in execution. Is the plaintiff entitled to mesne profits under the decree? The learned Subordinate Judge has upheld the plaintiffs claim and the correctness of his order is called in question in this appeal.

2. A few facts may be stated. The plaintiff, who was a minor at the date of the suit, claimed her deceased husbands properties from the defendants, who were alleged to have been in unlawful possession. Her husband died in 1913 and the suit was filed in 1919. Judgment was delivered for the plaintiff on the 10th February, 1922, directing delivery of possession of certain im-moveable properties. The judgment contains a further direction which is now material. It runs thus The mesne profits will be determined by a separate inquiry in execution proceedings.

3. An appeal, A.S. No. 220 of 1922, was taken to the High Court and in 1925 the judgment of the Trial Court was confirmed subject to a slight modification, which I need not notice.

4. The plaintiff applied to the Lower Court. on 6th April, 1927 by way of execution of the decree, for mesne profits past and future; in other words, she filed an execution petition claiming those profits. The learned Subordinate Judge, as I have said, has made an order, dated 13th October, 1927, in her favour. The appellants attack that order on five distinct grounds and I shall proceed to deal with each of them.

5. It is first contended that there is no effective decree in respect of mesne profits capable of execution but the direction to which I have referred awards profits by necessary implication. The order directing enquiry into mesne profits necessarily involves an award of those profits; for, why should there be an enquiry unless the profits were assumed to have been awarded? The decree must be construed in a reasonable sense and as Mr. Lakshmanna for the 1st respondent points out, should a different view be taken, the direction in the decree would be entirely futile. This is a result that every Court must avoid, if possible.

6. It is next contended that under the Code of Civil Procedure it was in excess of the Courts powers to direct an enquiry into profits in execution proceedings. On this point, the present Code, departing from the previous one, clearly lays down that mesne profits should be awarded by the decree itself, implying, that the enquiry should not be postponed to the stage of execution. But unfortunately, Courts in the mofussil frequently frame their decrees, as if the old Procedure Code is still in force in this respect and this repeatedly leads to trouble. While deploring this practice, we must still ask ourselves, is it a question of complete want of competency, or, of erroneous exercise of jurisdiction? The distinction between absence of jurisdiction and irregular exercise of jurisdiction has been frequently pointed out. If the Court fails to conform to the provisions of Order 20, Rule 12, it is impossible to hold that the defect is one of inherent incompetency. I agree with Lakshmi-bai v. Ravji Bhikaji (1928) 31 Bom L.R. 400 and hold that if a Court passes an order in contravention of that provision, it is not a nullity owing to a total want of jurisdiction. That the Court is competent to award mesne profits cannot be doubted, but in exercising that undoubted jurisdiction it adopts a wrong procedure. Thus, it is a case of mere irregular exercise of jurisdiction; and from this it follows that the executing Court r,annot go behind the decree to which it is bound to give effect in execution. If Ganga Prasad Dutt v. Rani Hemangini Debi (1917) 37 I.C. 997 takes a different view (which I doubt) I respectfully dissent from it.

7. The third objection of the appellants relates to the form of the proceeding. They contend that, notwithstanding the error in the decree, the application for an enquiry into mesne profits should have been made in the suit itself. As the plaintiff filed instead, an execution petition, it is urged that it is incom