KOSITY Vs. LUCKOSE

JUDGEMENT

(1.) While disposing of an appeal in a suit for redemption, the Subordinate Judge, Pathanamthitta directed the issue regarding mesne profits to be decided under O.20 R.12 of the C.P.C. The decree of the Subordinate Judge was confirmed in Second Appeal. The enquiry was conducted by the Trial Court after the decree holder took delivery of the property in execution. The enquiry revealed that the income of the property was much, more than the claim made in the plaint. The court, however, limited mesne profits to the figure mentioned in the plaint. The decision was confirmed in appeal. The above decision is challenged in this Second Appeal, by the plaintiff decree holder.

(2.) The provisions relevant to the enquiry are contained in O.7 R.2, O.20 R.12(1)(c) and S.44 of the Court Fees Act. Under O.7 R.2, where the plaintiff sues for mesne profits, he should state approximately the amount sued for. S.44 of the Court Fees Act states that in a suit for mesne profits, fee should be computed where the amount is stated approximately and sued for, on such amount. If the profits ascertained to be due to the plaintiff are in excess of the profits as approximately estimated and sued for, no decree should be passed until the difference between the fee actually paid and the fee that would have been payable, bad the suit comprised the whole of the profits so ascertained, is paid. These two provisions assume that a decree can be passed for mesne profits in excess of what is mentioned in the plaint, if on an adjudication, it is found that the property would fetch a higher income, the only condition being that the plaintiff should pay the additional court fee required for the excess amount. O.20 R.12 directs that where the suit is for recovery of possession of immovable property with mesne profits, the court is competent to pass a decree directing an enquiry as to the mesne profits from the institution of the suit until delivery of possession to the decree holder or the expiration of three years from the date of the decree whichever event first occurs. Where an enquiry is so directed, a final decree in respect of the mesne profits should be passed in accordance with the result of such inquiry.

(3.) There are two reported decisions of this Court on the point involved. In K. C. Alexander v. Nair Service Society Ltd. ( AIR 1966 Ker. 286 ), a Division Bench of this Court had occasion to consider the extent of mesne profits to be allowed in a case where the quantum mentioned in the plaint is less than the result of an enquiry under O.20 R.12 of the Code of Civil Procedure. The discussion proceeds as follows: