B.B Ghose, J.
1. This is an appeal by the decree-holder under somewhat peeuliar circumstances. The decree-holder-brought a suit for ejectment and mesne profits against the judgment-debtors in which suit he got a decree for ejectment and mesne profits in the trial Court. The judgment-debtors appealed against the decree which directed ejectment and they were successful in getting the decree set aside. They did not appeal against the final decree for mesne profits which apparently was passed along with the decree for ejectment by the trial Court. What the Subordinate Judge did in decreeing the appeal preferred by the defendant was that he stated that the decree for mesne profits would stand. The plaintiff in the previous suit now seeks for execution of the decree for mesne profits, although his suit for ejectment was dismissed and he was allowed mesne profits only upon the basis that the defendants were trespassers on his land. The learned Munsif held that the Subordinate Judge had jurisdiction to make the order that the decree with regard to mesne profits should stand although he dismissed the suit for ejectment and upon that he allowed the execution to proceed. On appeal the learned Subordinate Judge has reversed that decision He has held in effect that when the decree for ejectment was set aside the decree for mesne profits as against the defendants as trespasser was without jurisdiction. He has also ordered consequential steps to be taken to give relief to the judgment-debtor because during the pendency of the proceeding in the lower appellate Court the property of the judgment-debtor was sold in execution of that decree.
2. It is argued on behalf of the appellant that the decree of the Subordinate Judge might have been erroneous but the executing Court has no power to refrain from executing the decree and, therefore, the judgment of the Subordinate Judge is erroneous.
3. The real question for consideration in this case is whether, when the preliminary decree was set aside the final decree for mesne profits should be considered to stand. A decree for mesne profits can only be made against the trespasser in a suit for ejectment if ejectment is decreed. If on an appeal against the decree for ejectment that decree is set aside there cannot possibly be a decree for mesne profits. If during the pendency of the appeal against the decree for ejectment a decree for mesne profits has been made that decree should be considered as a decree dependent upon the original decree for ejectment, and if that decree is set aside the subsequent decree awarding mesne profits on the basis that the plainitiff has obtained a decree for ejectment must fall; and the same should be the result if the two decrees are passed simultaneously. If the all important decree for ejectment is wiped out there cannot be any ground upon which the decree for mesne profits can stand. In that view it must be held in my opinion that the deeree for mesns profits was nullified by the decree made dismissing the plaintiff's suit for ejectment. In that view there was no decree which the plaintiff decree-holder could execute as for mesne profits. The Subordinate Judge in his deeree stated that the decree for mesne profits would stand. That portion of the decree was absolutely without jurisdiction. The decree as regards mesne profits was not before him. The defendants had only appealed against the deeree allowing ejectment and that appeal he had allowed. In my opinion the decision of the Subordinate Judge is right and this appeal must be dismissed with costs. The hearing fee is assessed at three gold mohurs.
4. I agree.