JUDGMENT 1. The order against which this appeal is preferred was an order passed by the first Subordinate Judge of Mozufferpore on the 27th October 1900, refusing an application made by the Appellant on the 2nd July 1900, for the execution of a decree of that Court, dated the 10th March 1898, by inquiring into and awarding mesne profits as against the Defendants who were mortgagees in possession. The ground upon which the learned Subordinate Judge based his order was that neither in the decree then in execution nor in the decree of the High Court which had been previously passed, and which remanded the case to the Court of the Subordinate Judge, was there any order allowing mesne profits to the decree-holder. He was of opinion that that being so, it was not competent to him to ascertain the amount of mesne profits in the execution department, or to make any order allowing mesne profits. Here it is contended that in the judgment upon which the decree of the 10th March 1898 proceeded, the question of the amount of mesne profits was reserved for determination in the execution department, and that the application for execution was in effect an application to have the suit restored for the purpose of determining the question so reserved. The learned vakil for the Appellant however was unable to cite any authority in support of the position that where the decree which is in execution is silent altogether as to the question of mesne profits, it is competent to the Court to go behind the decree for the purpose of determining the amount of mesne profits. But there is a case in the Privy Council, the case of Muhammad Abdul Majid v. Muhammad Abdul Aziz I. L. R. 19 All. 155 (1896), which might at first sight appear to support the contention. It was there held that the circumstances that the decree itself did not direct an inquiry as to mesne profits was under the circumstances of the case immaterial. But there the question had been expressly reserved by the judgment for future decision. It was reserved upon an express agreement between the parties which was adopted by the Court, and admittedly something was due to the Plaintiff from the Defendant by way of mesne profits. But there the question had been expressly reserved by the judgment for future decision. It was reserved upon an express agreement between the parties which was adopted by the Court, and admittedly something was due to the Plaintiff from the Defendant by way of mesne profits. If the present case were on all fours with that case, we should of course not hesitate to give effect to the view taken by their Lordships of the Privy Council; but when we come to look into the judgment here, it seems to us that it is impossible to contend that the question of mesne profits was intended to be reserved for future consideration either at a later stage of the suit before decree or in the execution department. So far as we can perceive, the view which the Subordinate Judge took in respect of this question was that the Plaintiff had failed to place before him the materials necessary in order to make him determine the question, and that he therefore refrained from attempting to decide it. But there is nothing to indicate that he left that question open for decision at any future time. That consideration appears to us to be sufficient to distinguish the present case from the case of Muhammad Abdul Majid v, Muhammad Abdul Aziz I. L. R. 19 All. 155 (1896) and we have the direct authority of the Privy Council in another case, the case of Kalka Singh v. Paras Ram L. R. 22 I. A. 68 (1864) for the position that an order passed by the Court in execution giving to the Plaintiff mesne profits not awarded by the decree is without jurisdiction. That case appears to us to cover the present, and we think accordingly that the appeal fails and must be dismissed with costs. 2. We would add that in cases of the description now under consideration there are obviously two questions which must be dealt with by the Court, one is the question of the right to mesne profits, and the other is the question of their amount: and we take it that, unless the judgment or decree declares the right, it is impossible for the Court by a proceeding in execution to give the decree-holder that right. With regard to the amount, that is a matter which may be determined either by the decree or in the execution department. With regard to the amount, that is a matter which may be determined either by the decree or in the execution department. We assess the hearing fee at five gold mohurs.