The court has the duty to determine the exact quantum of profits recoverable by the plaintiff in a suit for recovery of possession with mesne profits, and the plaintiff is bound to state the amount of claim in respect of profits only approximately.

1. The short question that arises in this second appeal is whether the court while passing a decree for recovery of possession with mesne profits is competent to award to the plaintiff future mesne profits at a rate higher thai, what has been specifically stated in the plaint.

2. The facts against the background of which the question has arisen before us may be briefly stated. The appellant before us instituted O S. No. 129 of 1965 in the Munsiff's Court, Karunagappally seeking recovery of possession of the plaint schedule property from the 1st respondent herein, who was the sole defendant in the action, with mesne profits, past and future, at the rate of Rs 200/- per annum. Though the trial court dismissed the suit, that decree was set aside in appeal by the District Court, Quilon in A S. No. 240 of 1967. By the appellate judgment the plaintiff was granted a decree for recovery of possession of the suit properly with future mesne profits from the date of suit, the claim for past profits being disallowed. The appellate decree directed that the quantum of mesne profits should be determined at the execution stage. the plaintiff-decree-holder while applying for delivery of possession of the property in execution of the decree moved the executing court for the issuance of a commission for ascertaining the mesne profits recoverable from the defendant-Ist judgment debtor. An advocate-Commissioner was accordingly deputed by the executing court for ascertaining the mesne profits. Based on the report submitted by the Commisioner the executing court fixed the mesne profits payable to the plaintiff at Rs. 912.98 per year.

3. The defendant thereupon took the matter in appeal before the District Court, Quilon contending that inasmuch as the plaintiff had claimed mesne profits only at the rate of Rs. 200/- per year in the plaint, it was not competent for the executing court to award mesne profits at any higher rate in excess of the claim put forward in the plaint. This contention found favour with the District Judge who took the view that the question was concluded by the decision of a learned single judge of this Court in Kunhiraman v. Appa Kunhi (1968 KLT 264) wherein it was held that when the plaintiff has categorically claimed a specific sum as mesne profits it is not open to the court passing the final decree or the executing court to grant a higher amount. In this view the District Judge allowed the defendant's appeal to the extent of reducing the rate

of mesne profits payable to the plaintiff to Rs. 200/- per annum. The legality and correctness of the said decision rendered by the District Judge is called in question by the plaintiff in this second appeal.

4. S.2(12) of the Code of Civil Procedure (Act V of 1908) defines mesne profits as "those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful posses ion". R.2 of Order VII of the Code specifically lays down that where the plaintiff sues for mesne profits, in plaint need state only approximately the amount sued for. Under S.44 of the Kerala Court-fees and Suits Valuation Act, 1959 also, in a suit for mesne profits or for immovable property and mean profits, the plaintiff is ex-pected to state the amount sued for only approximately and the court-fee is to be computed in the first instance on such amount. If the profits that are finally ascertained as due to the plaintiff happens to be in excess of the profits approximately estimated and surd for, the section enjoins that no decree shall be passed until the difference between the fee actually paid and fee that ascertained so is paid. Sub-section (2) of S.44 proceeds to add that where a decree directs an enquiry as to the mesne profits which have accrued on the property, whether prior or subsequent to the ms'itution of t