The executing court has no jurisdiction to determine the mesne profits in execution proceedings at the request of the petitioners.

1. This judgment will dispose of C. R. Nos. 2798 of 1979 and 1985 of 1981. The facts in the judgment are being given from C. R. No. 2798 of 1979. The following pedigree table will be helpful in appreciating the facts of the case:-

2. Briefly. the facts are that Pritam Singh, Jiwan Singh and Gurdial Singh were the owners of land measuring 1072 Bighas 19 Biswas situated in village Phalauli along with the shares in Shamitlat Deh. Gora Deh. Abadi Deh, one well for drinking water and one for irrigation Kholas, and one house in the same village. Pritam Singh and Jiwan Singh filed a suit for possession of their 2/3rd share in the said property and for recovery of the amount of share of future profits in the land. The suit was decreed v the District Judge on 25-12-2006 B.K. (8th April, 1950) regarding the properties. However. there is no mention in the decree with regard to the relief of recovery of share of profits in the land. Gurdial Singh went up in appeal in the Pepsu High Court which was dismissed on 30th January. 1953. The decree-holders then filed an application for execution of the decree on 25th March 1953. in the Court of the District Judge praying that the land be got partitioned by the Collector, that the costs be realised by attachment of the land of the share of the judgment-debtors and that the future profits be ascertained and recovered from them. The District Judge sent a request to the Collector to partition the land. He, however, consigned the execution file to the record office pending report from the Collector.

3. The petitioner filed an application praying that the judgment-debtors be directed to furnish security for the amount of mesne profits. It was stated in the application that the decree for partition was passed by the trial Court as far back as 2006 BK and the ame was confirmed by the Pepsu High Court on 30th January, 1953. Nothing has been paid by the judgment-debts to the decree-holders during this period Consequently the above said prayer was made. The application was contested by the judgment-debtors who denied their liability to pay any mesne profits to the petitioners.

4. The learned trial Court held that the decree dt. 25-12-2006 B.K. was not a preliminary decree and, therefore, the petitioners could not claim any mense profits. It was further held that the

Daropadi

= Prabh Singh

Gurdial Singh Pritam Singh

Jiwan Singh

(Petitioner) Died in trial

= kulwant Kaur Died during

Court

R-3 (w/d) pendency of

Died two the revision

=Kishan Kaur

months back

widow R-6

Surjit Singh Jogindar Harjit Kaur Satinder Singh

Bajinder Kuar

R-1 Singh R-2 R-4 R-5 R-7

Gurgian Singh Harbans Singh Five daughtors

(Impleaded as petitioners vide order dated 4-11-1981 of this Court.) mesne profits were not awarded by the trial Court and, therefore, also they could not claim the same. The application was consequently dismissed. Pritam Singh decree-holder came up in revision to this Court.

5 During the pendency of the revision petition. the petitioner and Smt. Kulwant Kaur respondent No. 3 died. The legal representatives of the petitioner were brought on the record. However, no application was made for deletion of the name of Smt. Kulwant Kaur.

6. The first question that arises for determination is whether the decree dt. 25-12-2006 (B.K.) is a preliminary decree or a final decree. The contention of the learned counsel for the petitioners is that the decree was for the petitioners of the properties and, therefore, it is to be treated as a preliminary decree. He urges that the final decree will be passed after the properties have been partitioned. On the other hand. the learned counsel for the respondents. has argued that the plaintiffs sought partition of the agricultural land regardin