JUDGMENT

Bennet, J. - This is an execution first appeal by the Secretary of State for India in Council judgment-debtor. The facts are that the opposite party is a decree-holder in a suit which was brought for Rs. 7,000 damages on account of physical injury sustained by the opposite party when driving a motor lorry on a level crossing and colliding with an express train. The decree in question was passed by a Subordinate Judge. It was within the jurisdiction of the Subordinate Judge to award damages for the injury, etc., which the plaintiff had suffered up to date and it was also within the jurisdiction of the trial Court to pass a decree for prospective damages, i.e., damages which would include probable and future injury which would result to the plaintiff from the wrong act of the defendant. It is laid down in Underbill's Law of Torts, 3rd (Indian) Edition, in Article 38, "Prospective Damages," p. 115, that more than one action will not lie on the same cause of action and therefore prospective damages must be ascertained and awarded at the time of the trial. The trial Court however did not comply with this provision of law and instead of granting prospective damages the trial Court passed an order that as for further damages for the period following December 1930:

the matter would be taken up in execution proceedings. It might be then found that the plaintiff's condition would improve or that motor vehicle drivers could be had cheap or ho might have been provided with a job in the Railway Department.

2. The order stated:

I decree the claim for Rs. 932, with proportionate costs minus defendant's costs in proportion to the claim dismissed and provide that the defendant would be liable to pay such further damages with costs as the plaintiff may prove in the execution department as suffered after December 1930, owing to his suffering caused by the incident concerned. The rest of the claim is dismissed.

3. Neither party made any appeal against the decree of the Subordinate Judge. It was open to either party to object in appeal that this provision in regard to prospective damages was illegal. Neither party did so. The decree-holder has now made an application in the execution department for the ascertainment of damages for the period from December 1930, up to 19th January 1933, and he claims a sum of Rs. 40, for medical treatment and Rs. 1,000 as damages at the rate of Rs. 40 per mensem on the allegation that he still has trouble with his eyes and is unfit to be a motor driver. The lower Court has made an inquiry and held that the decree-holder is entitled to Rs. 382-8-0 damages. This amount is ascertained by taking Rs. 25 per mensem as the wages which the decree-holder might have earned as a motor-lorry driver if he had not been injured and deducting Rs. 10, per mensem which he is able to earn at present. The Civil Surgeon gave evidence that the decree-holder is of sound mental condition and can work as a mechanic, cleaner or shop-keeper, that there is no atrophy of any muscle of any part of his body, that he cannot do ordinary labouring manual work because he has got some stiffness in his right wrist and left knee and that he is not fit to be a motor driver as he has got photophobia and lactrymation and his distant vision is not yet normal. The objection has been taken in first appeal that the lower Court had no jurisdiction to determine the amount of damages suffered by the plaintiff after passing the original decree and that there was no executable decree before the lower Court to execute and that the lower Court could not go behind the decree. Further that the amount of profits awarded was excessive. Both parties agreed in argument that the decree as it stood was final. That being so recourse cannot be had to Order 20, Rule 12, which provides for an ascertainment in regard to future mesne profits from the institution of the suit until delivery of possession to the decree-holder. In that case there is a preliminary decree passed an