(e) But not a person who has a claim to property | liable to be taken; sec. 332 is for him, Khelat Chunder Ghose v. Prosunno Moyee Dassee. Marsh. 478.

Where a decree of the High Court is transmitted to a Judge for execution under sec. 224, and the judgment-debtor contends that the balance due on the decree is less than that for which execution is sought, the Judge has no jurisdiction to enquire into the question; but may, on cause shown, stay execution pending a reference to the High Court. Keshub Chunder Paul Chaudhri v. Khelat Chunder Ghose. S. W. R., IX. 261.

The Court executing the decree should not enter into the question whether the decree has been satisfied; but it should stay execution, and refer the point to the Court which passed the decree. Bykant Chunder Moostafee v. Khema Moyee Debia. ib. 360.

The non-expiry of the period of appeal is not sufficient. The Deputy Collector of the Sonthal Parganas v. Binode Ram Sen. ib. V. Mis, 53.

The

A decree was passed against defendant declaring him personally liable to claim, from which no appeal was preferred. Judge ordered execution to be stayed because the defendant, who was sued as a servant of Government, had ceased to fill that position. Held that the Judge's order was untenable. Chaudhri Muhammad Tuckee Beg v. Wallis, Agra Rep. II., Mis., 5. (9) Execution cases in which a sale or other proceedings are stayed for a fixed period at the request of the debtor, and with the consent of the decree-holder, should not be struck off till that period has expired; and if struck off for the convenience of the Court by an order which provides for the continuance of the attachment, sale may follow within the said period without a fresh attachment. Chumun Lall Chaudhri v. Domun Lall and others. S. W. R., IX. 205.

Thus also, when the decree-holder asked the Court to stay further proceedings for six weeks as the debtor had made part payment, but prayed that the attachment might be considered to be still in force, the execution case was removed from the file. Held that the attachment continued in force, notwithstanding a year's delay on the part of judgment-creditor in applying again for execution. J. Da Costa v. Kalee Parshad Singh, S. W. R., XII. 260.

Where the security offered by a judgment

debtor, with a view to execution against her being stayed until the decision of a suit for an account which she had brought against the decree-holder, was rejected, it was held that the order of rejection could not be interfered with by the High Court under sec. 15 of the Charter Act. The most obvious course in such a case is that suggested by sec, 243, Jodoomony Dossee, ib., XI. 494.

(h) In a suit in which an appeal to the Privy Council from a decree of the High Court has been admitted and is still pending, the Court of original jurisdiction which made the decree has power to issue execution; but if it has notice of the appeal to the Privy Council, it should stay its hand until the parties have had an opportunity of applying to the High Court. J. P. Wise v. Raj Kishen Joy and others, ib. Mis., VI. 84. In Moolchand v. Rajnarain Ghose, I. J. (N. 8.) I. 339, held that a Court will not necessarily stay proceedings when a decree has been obtained but a cross suit is pending; nor will it order sale proceeds in execution of the decree to be paid into Court, to abide the event of the second suit. A Court may, but need not, stay execution in the case of cross decrees where the larger decree is under appeal to England. Lachmeepat v. Meer Muhammad L. Chaudhri S. W. R., III. Mis. 20.

Where a Subordinate Judge, in consequence of a fresh suit by the plaintiff,

stayed the execution of a decree which was passed in the defendant's favor for costs, the High Court, in exercise of its extraordinary jurisdiction, reversed the stay order. Gambhirmal, &c. v. Chejmal, &c. Bom. H. C. R., XI. 151.

Any Court to which a decree is transm tted

for execution can stay execution, notwithstanding that the suit pending between the judgment-debtor and the holder of the decree is pending in such a Court, and not in the Court which transmitted the decree. Cooke v. Musst, Hiseeha Bibi, N. W. P., 1874, 181.

·

(2.) A suit will lie to cancel the sale of property of a person who was the representative on record of a judgment-debtor, but who was not shown to have inherited any of judgment debtor's property. In this case, Peacock, C. J., gave as his opinion:"It appears that this sec. does not apply to a case in which a decree under which property has been sold in execution is subsequently reversed upon appeal, and in which the decree-holder is the purchaser under his own decree; and if so, it does not apply to the case in which the decree under which the execution took place was so modified by the order of the High Court that it neither justified the execution which was issued under it, nor the sale which was effected under the execution." Shaikh Wahid Ali v. Mussumat Junaye B. L. R., (F. B.) II. 73.

(3.)The plaintiff held a decree against the defendants, and agreed to take an elephant in satisfaction; the defendants promising, if satisfaction were entered up, to be responsible for the value of the elephant, should it be claimed and recovered by any other person. It was so claimed and recovered, and the plaintiff sued afresh for its value. Muthra Chaudhri, v. Sheoruttan Mull, N. W. P. 1874. 126.

(4.) Objections to sale of property sold under decree. Such objections fall under sec. 278. Harish Chandra Guptu v. Srimati . Mala Gupti B. L. R., VI. 721.

Nor does this apply to judgment-debtors urging that the decree was obtained by fraud. Piraj Oopadhia v. Musst. Doorga, N.-W. P. 1864, p. 472, also S. W. R., I.

29.

In executing a decree for mesne profits, a Court does right in excluding from the account lands of such a nature as would, under ordinary circumstances, yield no profit, or regarding which it has not been shown that the judgment-debtors had opportunities of disposing of them for a profit. Becharam Dass v. Brojonath Pal Chaudhri and others, ib. IX. 369.

Mesne profits in respect of land should be calculated at a fair and reasonable rent for the land. Ranee Asmed Kooer

V.

Maharanee Indurjeet Kover. ib, (F. B.), IX. p. 313. When enquiry is granted, decree-holder is not bound as to the amount stated in plaint. Haro Gobind Bhakut v. Degumburee Dabee, ib. IX. 217.

(k) Payable not recoverable. Radhabhai v. Radhabhai, B. H. C. R. (A. C.), IV. 181. Where decree for restitution is made in reversal of decree for possession, mesne profits follow. Haro Chunder Roy Chaudhri v. Shooroo Dhoni Debi, S. W. R., (F. B.), IX. 403.

A decree for interest upon mesne profits from the date on which they are ascertained runs from date of ascertainment by Court and not by Amin. Doorga Sundree Dabee v. Shibesri Dabee. S. W. R., X. 391.

In cases where wasilat is asked for in the

plaint, the question as to the amount thereof (if any) which should be paid to the plaintiff in respect to the period of dispossession, before and up to the date of filing the plaint, must be distinctly raised, and, if possible, determined at the hearing of the suit; and the decree must specify clearly the portion of this amount which each defendant is to pay, either severally or jointly with others, to the plaintiff. In the event, however, of its being necessary, for any good reason, to reserve the determination of this ques

tion until proceedings are taken to execute the decree, the order to this effect, with the reason for making it, should be recorded.

It is the duty of the judicial officer to ascertain and determine, from the evidence placed before him by both sides, what is the amount of wasilat, if any, which is due to the plaintiff; and he has no more authority to leave this question to the decision of an Amín than he has to do the same with any other question which arises between the parties in the suit. An Amin may, when necessary, be sent to effect a local investigation: the reasons for adopting this course should be fully recorded. When an Amin is deputed, his duty is merely to collect evidence for the Court, and to report the state of facts which he has observed. In such case the deposition of witnesses which the Amín may take, and his own report, when returned, together with his own testimony if he be examined, constitute part of the evidence upon which the judicial officer has to decide the question before him, and must be produced to the Court in the presence of the parties at a hearing of the matter in dispute, just in the same manner as all other evidence. A decree for possession of certain land with wasilat obtained by a zamindar of an estate, as such, cannot be pledged by him as security for a personal debt, nor can the estate be made liable, or his successor be held responsible. Nimaye Churn v. Sen Rammonee Bibee and others. S. W. R., X.

152.

Objections having been successfully raised against a decree holder's attachment of a tenure as the property of his judgmentdebtor, he obtained a declaratory decree that the property belonged to his debtor. He then took out execution, attached, sold, and purchased the property in question. The objector in the meantime appealed to the Privy Council, and having obtained a decree reversing the declaratory decree, took out execution against the opposite party for costs and wasilat. Held, on objection, that the decree of the Privy Council could not be held to include restitution of everything that the decreeholder would have enjoyed had the property not been sold in execution. Gopal Chunder Chuckerbutty v. Odoy Chand Dey. ib. XII.

411.

A defendant who, upon an inquiry into mesne profits, absents himself at the time of the enquiry by the Commissioner, withholds his accounts and papers, and lays before the lower Court no materials on which it can come to any decision as to the expenses at which it has been, is not entitled to invoke the assistance of the Court of appeal, Jadho Nath Roy v.

Ram Bakhsh Chulungee. ib. VIII. 202. (1) Where a decree does not provide for the payment of interest, it is not competent to the Court executing the decree to add to it by giving interest. Kuppa Ayyar, v. Venkataramana Ayyar, Mad. Rep. A. C., III. 421. A Court can only award amount actually mentioned in decree : if decree is silent, it can award no profits; if decree award fixed sum, with costs and interest up to date of liquidation, profits during pendency of suit and subsequent to decision cannot be granted. Mosuddan Lal v. Bhikari Singh, S. W. R., Mis. VI. 109; Haroo Mohni Chaudrain v. Dhan Moni Chaudrain. ib. X. 62; Raja Tek Narayan Singh v. Forlong. ib. II. 4; Har Charun Lal v. Turab Khan, N.-W. P., II. 176.

A plaintiff cannot recover more than is clearly given to him by the decree, either in express terms or by necessary inference. Where the plaint prays for interest up to the date of the suit, together with subsequent interest, and the decree purports to be an award in accordance with the prayer of the plaint, the plaintiff is not entitled to interest subsequent to the date of the decree. Prabhalanadha Pilly v, Ponnosamy Chetty, M. H. C. R. A., VI. 1.

An agreement entered into before decree between a person who subsequently became the decree-holder and the defendant, his debtor, stipulating that the decree should be enforced in a particular manner, is no bar to the execution of that decree according to its terms. Sabharam Ramchundra Dikohit v. Govind Vamau Dikohit. Bom. H. C. R., X. 361.

So long as a decree subsists unreversed and unvaried, the parties thereto and those claiming are bound by it; and no effect can be given to any prior agreement regarding the same matter on the ground that the terms of the decree differ from those of the prior agreement, notwithstanding that the parties had requested the Court which passed the decree to draw it up according to the terms of the agreement. Jankihai v. Atma Ram Bahurah. ib. 241.

A Court executing a decree can ascertain the amount of profits which have accrued between date of decree and of possession. Sheikh Muhammad Bushir Vilah Chaudhri v. Hardat Ali Chaudhri, S. W. R., VIII. 42.

(m) The word "parties" has been held to include:

(1) A defaulting purchaser in the case of resale under sec. 293, and the decreeholder. Baboo Soorjoo B. Singh v. Sreekishen Dass, Wym R., III. 5.

(2) A surety for a judgment-debtor under sec. 253. Ghora Lall Jha v. Sheonarain