1. This Appeal is against an order passed by the DistrictJudge of Gaya in certain proceedings in execution of a decree in a suit foraccount. The decree-holders, who are the Appellants in this Court in a suit foraccount, obtained a preliminary decree which directed the Defendant to renderaccounts. This preliminary decree was passed on the 21st March 1908. TheDefendant appealed against that decree on the 21st May 1908. Notwithstandingthat the Defendant appealed against the preliminary decree, the Court of firstinstance proceeded with the matter of accounts (the proceedings not having beenstayed by the Appellate Court) and passed a decree for Rs. 1,284-8-0 againstthe Defendant on the 28th May 1908. It does not appear that the Defendant tookany part in the proceedings before the Court of first instance in the matter oftaking of accounts or that he even appeared before that Court subsequent to thefiling of the appeal against the preliminary decree. On the nth August 1908,the District Judge set aside the preliminary decree holding that the Defendantwas not liable to render any account. There was an appeal by the Plaintiffsagainst this decision of the District Judge to the High Court and the HighCourt 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 beenpassed by the first Court on the 28th May 1908. The Defendant objected to theexecution on the ground that the preliminary decree on the basis of whichsubsequent final decree was passed having been set aside the final decree whichwas subordinate to and dependent upon the preliminary decree must be taken tohave been superseded and that, therefore, the final decree could not beexecuted. Both the Courts below have given effect to this contention and thePlaintiffs have appealed to this Court. It is contended on behalf of theAppellants that the final decree can be executed so long as it remainsunreversed, and that the appeal against the preliminary decree was notmaintainable when a final decree had already been passed in the case: andreliance is placed upon several decisions of this Court, namely, in the casesof 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. 32All. 225 (1910). It has no doubt been laid down in these cases that when afinal decree has been made it is not only open but it is the duty of the partywho is aggrieved by the preliminary decree or interlocutory order, which up tothat stage had not been questioned by way of appeal, to prefer an appealagainst the final decree and to question the validity of the preliminary decreeor interlocutory order. But in all those cases [except the case in BaikunthaNath v. Salimulla 6 C. L J. 547 (1907)], the appeal against the preliminarydecree or the interlocutory order was presented after the final decree had beenpassed and the fact that a final decree had been passed having been brought tothe notice of the Appellate Court at the hearing of the appeal from thepreliminary decree or interlocutory order, it was held that, the final decreehaving been passed, the appeal against the preliminary decree or interlocutoryorder 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 lostin the Court of first instance appealed and himself obtained an order of remandfrom the Appellate Court directing the first Court to appoint a Commissionerfor ascertaining whether the lands in suit appertained to the Plaintiffsputni. The order of remand was made by consent of both parties. The Plaintiffappeared before the Munsif after the order of remand, assisted in the localinvestigation held by the Commissioner, but at the final hearing by the Munsifwhen asked to argue the case he refused to do so upon an erroneous assertionthat 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 thejudgment was actually delivered the Plaintiff preferred an appeal to the HighCourt 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 noticeof the Court and this Court held that the Plaintiff having made his electionand taken the full benefit of the order of remand which was passed with theconsent of both parties could not turn round and complain against the order ofremand. In this case, the Defendant preferred an appeal against the preliminarydecree before the final decree was passed and he does not appear to have takenany part in the proceedings subsequent to the filing of his appeal. At the limewhen he preferred the appeal, no final decree had been passed, the AppellateCourt, therefore, certainly had jurisdiction to hear the appeal, and that powerof the Appellate Court to hear the appeal against the preliminary decree was nottaken away by the final decree passed by the Court of first instance on the28th May 1908. The final decree in the case which merely determined the amountfor which the Defendant was liable to the Plaintiffs was dependent upon thepreliminary decree which held that the Defendant was liable to render account,and the validity of the proceedings which resulted in the final decree dependedupon the preliminary decree itself, and that decree having been set aside onappeal, the final decree necessarily fell through.

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 theexecuting Court has no power to deal with the matter. We think, however, thatthe final decree was superseded by the order of the Appellate Court settingaside the preliminary decree upon which it depended. In the case ofJatingavalley Tea Company v. Chera Tea Company I. L. R. 12 Cal. 45 (1885), itwas pointed out that the Munsifs jurisdiction to hear the case upon remanddepended 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 werenull and void. It is true that, in that case, the final decree was alsoexpressly set aside by this Court, but the fact that a final decree had beenpassed was brought to the notice of this Court at the hearing of the appeal inthat case. In the present case, although the Plaintiffs were perfectly awarethat a final decree had been passed in the case, they did not bring it to thenotice of either the first Court of Appeal or the High Court. We are ofopinion, on the principles laid down in the case of Shama Purshad v. HurroPurshad 10 M. I. A. 203 (1865) and in the case of Jogesh Chunder v. Kali CharanI.L.R. 3 Cal. 30 (1877), that the final decree in this case which was dependentupon and subordinate to the preliminary decree must be taken to have beensuperseded by the decision of the Appellate Court setting aside the preliminarydecree. We are further of opinion that it is perfectly open to the executingCourt to determine whether the decree which it is asked to execute is asubsisting and operative decree or not and if such a decree has been supersededand is no longer operative, the executing Court is entitled to refuse executionon that ground. Having regard to the decision of the Appellate Court holdingthat the Defendant was not liable to account at all, the Court of execution wascertainly right in holding that the final decree could not be executed. Underthese circumstances, the order appealed against seems to us to be perfectlycorrect and the Appeal must, therefore, be dismissed with costs. We assess thehearing-fee at two gold-mohurs.

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Ram Nath Singh vs.Basanta Narain Singh (30.04.1913 -CALHC)