1. The point we are called upon to decide in this appeal is, whether the plaint having stated the amount of mesne profits claimed at a certain sum of money, and the decree having directed the amount to be ascertained in execution, the plaintiff, decree-holder, is estopped from claiming any excess of the amount stated in his plaint.
2. As an authority for the affirmative of this proposition the case of Baboojan Jha v. Byjnath Jha I.L.R. 6 Cal. 472; S.C 7 C.L.R. 539 has been cited. We have consulted the learned Judges who passed that judgment, and we are authorized by them to state that they did not then intend to enunciate any general rule for adoption in such cases. We are therefore at liberty to deal with this case on its own merits.
3. It appears to us that-as stated by Dwarkanath Mitter, J. in the case of Pearee Soonduree Dossee v. Eshan Chunder Bose 16 W.R. 302. the decision in the original suit having declared the amount of mesne profits should be determined in execution, the Courts are not precluded from varying or altering the decree in that suit. This was the conclusion arrived at by a Full Bench of this Court-Mosoodun Lall v. Bheekaree Singh 6 W.R. Mis. 109 and affirmed by their Lordships of the Privy Council in numerous cases: see Pillai v. Pillai L.R. 2 I.A. 219; Forester v. Secretary of State for India L.R. 4 I.A. 137; Gokuldass v. Murli L.R. 5 I.A. 78. We are, therefore, of opinion that, in executing such a decree as that now before us, the plaintiff is not estopped from proving that he is entitled to a larger sum as mesne profits than that claimed in his plaint. This is in accordance with Section 11 of the Court Fees Act, which declared that, in suits for mesne profits, or for immoveable property and for mesne profits, if the profits or the amount decreed are or is in excess of the profits claimed, the decree shall not be executed until the difference of fee has been paid. It also appears to be the view adopted by their Lordships of the Privy Council in the case of Fakharuddin Mahomed Ahson Chowdhry v. Official Trustee of Bengal L.R. 8 I.A. 197 for we find from an inspection of the record that the successful party obtained a larger sum as wasilat than he had claimed in his plaint. At the same time, we would observe, that if it should appear that, in making his original claim for mesne profits, a plaintiff has special means of knowledge for determining the amount due, the judgment-debtor can fairly use as evidence against him his own statements embodied in his plaint. Applying this principle to the present case, we think that it must be remanded for reconsideration by the lower Appellate Court. Costs to abide the result.