Caspersz and Sharfuddin, JJ.
1. This is an appeal, by the judgment-debtors, from an order of the Subordinate Judge of Rajshahye holding that they are bound, by the final decree of this Court, to pay mesne profits to the decree-holders for the respective periods during which they were, admittedly, in possession of the land in suit. That decree, dated the 13th December, 1906, awarded possession and mesne profits against Messrs. Robert Watson & Co. Ld. The litigation having commenced in the year 1899, the judgment-debtors, successively, purchased the property pendente lite, on the 29th November, 1902, and the 3rd December, 1906--though possession had been taken, in the latter case, on the 1st January, 1906. They did not apply to have their names added as defendants in the pending suit. On the 3rd April 1909, the decree-holders put in a petition for execution of their decree. They mentioned, in the ninth column of the application, the names of Messrs. Kobert Watson & Co. Ld. Mr. C.B. Gregson, and the Midna pore Zemindari Company, Limited, and they asked for possession of the decretal land, and that mesne profits might be ascertained, against the judgment-debtors. The objection of Mr. C.B. Gregson and the Midnapore Zemindari Company was disallowed; hence this appeal. On behalf of the judgment-debtors it has been urged that they cannot be made liable in execution proceedings for the mesne profits decreed against Messrs. Robert Watson & Co.
2. Now, it admits of no doubt that possession of the land in suit can be given to the decree-holders against If Mr. Gregson and the Midnapore Zemindari Company. They could not, being transferees lite pendente, resist execution of the decree so far as it relates to immovable property (Order XXI, Rule 102 of the Code of Civil Procedure, 1908). The contentions of the learned vakil for the judgment-debtors are that they are not the legal representatives of Messrs. Robert Watson & Co. that Order XXII, Rule 10, does not apply to proceedings in execution of a decree; and that a money decree cannot be passed against persons who are not affected by the doctrine of lis pendens, so far as the liability to pay money in the shape of mesne profits is concerned, even if the suit, be regarded as not having been terminated by the decree of this Court on the 13th December, 1906.
3. The transferees, Mr. Gregson and the Midnapore Zemindari Company, are certainly not the legal representatives of Messrs. Robert Watson & Co. within the definition in Section 2(11) of the Code, but the case is not one under Section 50, where action is taken on the death of a judgment-debtor. It is a case of devolution of interest by sale during the pendency of the litigation. The questions then arise whether the suit continued after the 13th December, 1906; if not, whether Order XXII, Rule 10 of the Code, applies to execution proceedings; and, if the suit did so continue, whether the claim for mesne profits can be separated from the claim for the land so as to defeat the operation of the rule of Us pendens which does not touch property which is not immovable. In our opinion, the suit continued after the decree of this Court had been passed. Proceedings for the assessment of mesne profits are in continuation of the original suit. No operative decree can be passed until the mesne profits are ascertained on enquiries made in accordance with the directions given in the interlocutory decree. In support of this position, we may refer to the decision of their Lordships of the Privy Council in Radha Prasad Singh v. Lal Sahab Rai (1860) I.L.R. 13 All. 53, 65 : L.R. 17 I.A. 150 which was followed in Muhammad Umarjan Khan v. Zinat Begam (1903) I.L.R. 25 All. 385. The same view was adopted by a Full Bench of this Court in Puran Chand v. Roy Radha Kishan (1891) I.L.R. 19 Calc. 132, 136, 137 where reference is made to the earlier cases. That being so, the suit is a single suit. Mesne profits are determined in the suit itself and not by way of execution for a fixed sum of money. In the present case, no decree for money is asked for, nor is any decree for money being executed. No authority has been cited to us for the view that a suit may continue for one purpose only after it has ended for another purpose. The case is stronger than that of Puran Chand (1891) I.L.R. 19 Calc. 132, 136, 137, for there possession of land had been taken before mesne profits had been determined, and, in such circumstances, it might have been con-5 tended that the final decree for mesne profits was 1 a separate decree: see Order XX, Rule 12(2). The decree-holders here ask for possession of the land and for the assessment of mesne profits, simultaneously, with a view to a formal and final decree being prepared in respect of both the reliefs in one and the same suit see Gopal Chandra Chakravarti v. Preonath Dutt (1904) I.L.R. 32 Calc. 175. The question of lis pendens cannot arise independently for a part of the subject-matter of the litigation. The true test, as it seems to us, is whether Mr. Gregson and the Midnapore Zemindari Company were in wrongful possession of the land; if they were, and it is admitted that they were, they are liable to pay the profits they actually received, or might with ordinary diligence have received, therefrom.
4. The remaining contention, as to the scope of Order XXII, Rule 10 of the Code, whether that rule applies to execution proceedings, need not be decided, because the present case is not one in execution of decree. In Harish Chandra Tewary v. Chandpore Co. Limited (1903) I.L.R. 30 Calc. 961 doubt was expressed whether Section 372 of the Code of 1882 applied to execution proceedings. The present Code (Order XXII, Rule 12) seems to imply, by the principle of exclusion, that all the rules of that Order, except Rules 3, 4, and 8, are applicable to proceedings in execution of a decree or order, and we are inclined to think that Rule 10 is so made applicable.
5. The appeal is dismissed with costs.