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 Order XX 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 Order VII, R.2, Order XX R.12(1)(c) and S.44 of the Court Fees Act. Under Order VII 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. Order XX 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 Kerala 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 Order XX,Rule 12 of the Code of Civil Procedure. The discussion proceeds as follows:

"It is pointed out on behalf of the 1st defendant that the claim made in the plaint in respect of mesne profits is only at the rate of Rs. 5000 per annum and it is contended that the decree cannot award anything more. This is to misunderstand the nature of the claim for mesne profits made in this particular case and the nature of such a claim in general. Having regard to the definition of "mesne profits" in S.2 (12) of the Code, it is apparent that mesne profits are something which a plaintiff cannot evaluate and which it is solely for the court to determine on the evidence before it. As in a suit for an account, the plaintiff can only mention rough figure as the amount which will be found due to him, and that is why the second paragraph of Order VII R.2 of the Code makes an exception to the general principle laid down in the first paragraph that in a suit for money the plaint shall state the precise amount claimed and says that when the claim is for mesne profits, or for an amount which will be found due on taking unsettled accounts the plaint need only state approximately the amount sued for. S.11 of the Court Fees Act, 1870 makes the position even clearer. It shows that the claim in a suit for mesne prof its is only a rough estimate even if a precise amount it stated and that it is for the court to ascertain is t