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Jadoomony Dabee and ors. Vs. Hafez Mahomed Ali Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal295
AppellantJadoomony Dabee and ors.
RespondentHafez Mahomed Ali Khan
Cases ReferredPearee Soonduree Dossee v. Eshan Chunder Bose
Excerpt:
mesne profits - amount claimed in plaint--larger amount found due by amem--objection under civil procedure code (act x of 1877), section 244-- execution of decree. - morris, j.1. the plaintiffs, in their plaint, stated rs. 1,200 as approximately the amount of the mesne profits to which they were entitled, and paid court-fees on that amount. the decree for possession and mesne profits which they obtained left the determination of the amount of the mesne profits to be settled in execution without referring to the amount specified in the plaint or in any way limiting plaintiff's claim.2. the subordinate judge in execution has refused to allow plaintiff's anything beyond the amount stated in their plaint.3. baboo sreenath doss for the respondent, by an ingenious calculation, endeavours to show that the rate per annum was definitely settled by the plaintiffs, and that the word 'approximately' (annumamik) used in the plaint, in connection with the estimated.....
Judgment:

Morris, J.

1. The plaintiffs, in their plaint, stated Rs. 1,200 as approximately the amount of the mesne profits to which they were entitled, and paid court-fees on that amount. The decree for possession and mesne profits which they obtained left the determination of the amount of the mesne profits to be settled in execution without referring to the amount specified in the plaint or in any way limiting plaintiff's claim.

2. The Subordinate Judge in execution has refused to allow plaintiff's anything beyond the amount stated in their plaint.

3. Baboo Sreenath Doss for the respondent, by an ingenious calculation, endeavours to show that the rate per annum was definitely settled by the plaintiffs, and that the word 'approximately' (annumamik) used in the plaint, in connection with the estimated amount of claim, had reference only to the duration of the suit and the interval which might elapse before possession was obtained. We are not inclined to adopt this view, which is purely conjectural.

4. The case of Baboojan Jha v. Byjnath Dutt Jha I.L.R. 6 Cal. 474 on which the Subordinate Judge relies, seems to us to be not in point, and to differ in a very essential particular from this case. In that case, as appears from the judgment delivered, the annual rent of the land which formed the measure of mesne profits was 'deliberately claimed,' in the plaint; whereas here it is only estimated approximately. The plaintiffs having, therefore, obtained a decree which left the amount due as mesne profits to be ascertained in execution, would not be limited by the amount stated in their plaint, and as pointed out by Dwarkanath Mitter, J., in the case of Pearee Soonduree Dossee v. Eshan Chunder Bose 16 W.R. 302 the Court in execution of a decree cannot look behind the decree when that decree does not limit the amount of wasilat to be awarded. In this view, as we understand the lower Court to agree with the Ameen who made the local enquiry that the actual mesne profits of the period in question amount to Rs. 9,214-1, and this is not a matter in dispute in this appeal, we give a decree in favour of the appellants, declaring them entitled to the sum of Rs. 9,214-1-0, but in accordance with Section 11 of Act VII of 1870, execution for the realization of this sum cannot be taken out until the decree-holders pay into Court the fee which the law requires upon the difference between the mesne profits now ascertained and determined and the mesne profits originally claimed by them upon which court-fees have been paid. The plaintiffs will then be allowed to realize in execution the full amount of Rs. 9,214-1. The order of the lower Court is, therefore, amended and modified accordingly. Appellants are entitled to their costs in this Court.


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