JUDGMENT 1. This Appeal is against an order passed by the District Judge of Gaya in certain proceedings in execution of a decree in a suit for account. The decree-holders, who are the Appellants in this Court in a suit for account, obtained a preliminary decree which directed the Defendant to render accounts. This preliminary decree was passed on the 21st March 1908. The Defendant appealed against that decree on the 21st May 1908. Notwithstanding that the Defendant appealed against the preliminary decree, the Court of first instance proceeded with the matter of accounts (the proceedings not having been stayed by the Appellate Court) and passed a decree for Rs. 1,284-8-0 against the Defendant on the 28th May 1908. It does not appear that the Defendant took any part in the proceedings before the Court of first instance in the matter of taking of accounts or that he even appeared before that Court subsequent to the filing of the appeal against the preliminary decree. On the nth August 1908, the District Judge set aside the preliminary decree holding that the Defendant was not liable to render any account. There was an appeal by the Plaintiffs against this decision of the District Judge to the High Court and the High Court dismissed the appeal on the 30th August 1910. On the 22nd February 1911, the decree-holders applied for execution of the final decree which had been passed by the first Court on the 28th May 1908. The Defendant objected to the execution on the ground that the preliminary decree on the basis of which subsequent final decree was passed having been set aside the final decree which was subordinate to and dependent upon the preliminary decree must be taken to have been superseded and that, therefore, the final decree could not be executed. Both the Courts below have given effect to this contention and the Plaintiffs have appealed to this Court. Both the Courts below have given effect to this contention and the Plaintiffs have appealed to this Court. It is contended on behalf of the Appellants that the final decree can be executed so long as it remains unreversed, and that the appeal against the preliminary decree was not maintainable when a final decree had already been passed in the case: and reliance is placed upon several decisions of this Court, namely, in the cases of Mackenzie v. Narsingh Sahai 10 C. L. J. 113 (1909), Baikuntha Nath v. Salimulla 6 C. L J. 547 (1907) and Madhusudan v. Kamini Kanta I. L. R. 32 Cal. 1023 (1905), and also upon the case of Kuriya Mal v. Bishambhar Das I. L. R. 32 All. 225 (1910). It has no doubt been laid down in these cases that when a final decree has been made it is not only open but it is the duty of the party who is aggrieved by the preliminary decree or interlocutory order, which up to that stage had not been questioned by way of appeal, to prefer an appeal against the final decree and to question the validity of the preliminary decree or interlocutory order. But in all those cases [except the case in Baikuntha Nath v. Salimulla 6 C. L J. 547 (1907)], the appeal against the preliminary decree or the interlocutory order was presented after the final decree had been passed and the fact that a final decree had been passed having been brought to the notice of the Appellate Court at the hearing of the appeal from the preliminary decree or interlocutory order, it was held that, the final decree having been passed, the appeal against the preliminary decree or interlocutory order could not be maintained. The facts of the case in Baikuntha Naik v. Salimulla 6 C. L J. 547 (1907) were peculiar. There, the Plaintiff having lost in the Court of first instance appealed and himself obtained an order of remand from the Appellate Court directing the first Court to appoint a Commissioner for ascertaining whether the lands in suit appertained to the Plaintiff's putni. The order of remand was made by consent of both parties. There, the Plaintiff having lost in the Court of first instance appealed and himself obtained an order of remand from the Appellate Court directing the first Court to appoint a Commissioner for ascertaining whether the lands in suit appertained to the Plaintiff's putni. The order of remand was made by consent of both parties. The Plaintiff appeared before the Munsif after the order of remand, assisted in the local investigation held by the Commissioner, but at the final hearing by the Munsif when asked to argue the case he refused to do so upon an erroneous assertion that an appeal had been lodged in the High Court against the order of remand. After the arguments on the side of the Defendant were finished but before the judgment was actually delivered the Plaintiff preferred an appeal to the High Court against the order of remand and, when that appeal came on for hearing, the fact that a final decree had already been passed was brought to the notice of the Court and this Court held that the Plaintiff having made his election and taken the full benefit of the order of remand which was passed with the consent of both parties could not turn round and complain against the order of remand. In this case, the Defendant preferred an appeal against the preliminary decree before the final decree was passed and he does not appear to have taken any part in the proceedings subsequent t0 the filing of his appeal. At the lime when he preferred the appeal, no final decree had been passed, the Appellate Court, therefore, certainly had jurisdiction to hear the appeal, and that power of the Appellate Court t0 hear the appeal against the preliminary decree was not taken away by the final decree passed by the Court of first instance on the 28th May 1908. The final decree in the case which merely determined the amount for which the Defendant was liable to the Plaintiffs was dependent upon the preliminary decree which held that the Defendant was liable to render account, and the validity of the proceedings which resulted in the final decree depended upon the preliminary decree itself, and that decree having been set aside on appeal, the final decree necessarily fell through. 2. 2. It has next been contended that it was, at any rate, necessary to have the final decree formally set aside and that, at all events, the question could not he gone into in execution proceedings and that the executing Court has no power to deal with the matter. We think, however, that the final decree was superseded by the order of the Appellate Court setting aside the preliminary decree upon which it depended. In the case of Jatingavalley Tea Company v. Chera Tea Company I. L. R. 12 Cal. 45 (1885), it was pointed out that the Munsif's jurisdiction to hear the case upon remand depended upon the remand order and that, if the remand order were badly made, the decree and, indeed, all the proceedings taken under that remand order were null and void. It is true that, in that case, the final decree was also expressly set aside by this Court, but the fact that a final decree had been passed was brought to the notice of this Court at the hearing of the appeal in that case. In the present case, although the Plaintiffs were perfectly aware that a final decree had been passed in the case, they did not bring it to the notice of either the first Court of Appeal or the High Court. We are of opinion, on the principles laid down in the case of Shama Purshad v. Hurro Purshad 10 M. I. A. 203 (1865) and in the case of Jogesh Chunder v. Kali Charan ILR 3 Cal. 30 (1877), that the final decree in this case which was dependent upon and subordinate to the preliminary decree must be taken to have been superseded by the decision of the Appellate Court setting aside the preliminary decree. We are further of opinion that it is perfectly open to the executing Court to determine whether the decree which it is asked to execute is a subsisting and operative decree or not and if such a decree has been superseded and is no longer operative, the executing Court is entitled to refuse execution on that ground. Having regard to the decision of the Appellate Court holding that the Defendant was not liable to account at all, the Court of execution was certainly right in holding that the final decree could not be executed. Having regard to the decision of the Appellate Court holding that the Defendant was not liable to account at all, the Court of execution was certainly right in holding that the final decree could not be executed. Under these circumstances, the order appealed against seems to us to be perfectly correct and the Appeal must, therefore, be dismissed with costs. We assess the hearing-fee at two gold-mohurs.