Tottenham and Ameer Ali, JJ.
1. The question involved in this rule is whether, under Section 21 of Act XII of 1887, the appeal of the judgment debtors lies in this Court or in the Court of the District Judge.
2. For the petitioners it is contended that the expression 'value of the original suit' in Section 21 Act XII of 1887 means the valuation fixed upon by the plaintiff at the outset, without regard to the value of the relief sought or the amount of the mesne profits that might be found due to the plaintiff; and it has been urged that to hold that the appeal from the decree for possession should lie to the District Judge, and that the appeal on the question of mesne profits should lie to this Court, would involve an anomaly. For the decree-holders it has been contended that the value of the suit depends not merely upon the value of the property sought to be recovered, but also upon the value or amount of the profits recoverable. We think this contention is correct.
3. Under Section 50 of the Code of Civil Procedure, the plaintiff, in a suit for mesne profits or for money to be ascertained on the taking of unsettled accounts, is allowed to value his claim approximately. Accordingly when a claim for mesne profits is joined to a claim for the recovery of land, the plaintiff may either fix a nominal or approximate value on the latter part of his claim, or not fix any value at all. In either case the amount of mesne profits is usually reserved for enquiry after the preliminary decree for possession. When the enquiry as to the amount of mesne profits recoverable is reserved, the decree for possession is only a partial decree: the final decree is made only after the mesne profits have been ascertained. Now, in such cases the value of the suit is made up of two elements, viz., the value of the property claimed and the amount of the mesne profits. Should the plaintiff put any approximate value upon his claim for mesne profits, the value of his suit for the purpose of determining the forum of appeal from the preliminary decree would be constituted of two known elements, viz., the value of the property plus the assessed amount of mesne profits, and the appeal would lie to this Court or to the District Judge's Court, as the value of the two elements together exceeds Rs. 5,000 or falls below it. But when no amount is fixed approximately or nominally upon the mesne profits, it is an unknown quantity, and the value of the suit, so far as the appeal from the preliminary decree for possession is concerned, is the value of the property alone, which would determine the forum of appeal. When the amount of mesne profits has been ascertained, the value of the original suit is the value of the property sued for, plus the mesne profits, and the appeal would lie accordingly.
4. We do not think there is any anomaly involved in this conclusion. We think that the 'value of the original suit' depends on, and is involved in, the value of the relief sought; and when once the final decree ascertaining the amount of mesne profits is made, the precise value of the suit becomes ascertained. Until then it is a variable quantity. To hold otherwise would be to declare that the Legislature intended that only one component part of the value should be taken into consideration for determining the forum of appeal and not the other.
5. We accordingly hold that, under Section 21 of Act XII of 1887, the appeal in this case lies to this Court and not to the District Judge, and we direct that the appeal of the petitioners be registered accordingly. No costs of the rule.