Judgement Appeal from a decree of the High Court (Dec. 16, 1895), varying a decree of the Subordinate Judge of Bareilly (Feb. 6, 1894). The suit was brought in 1892 by the appellant to recover from the respondent the sum of Rs.24,332, due on account of mesne profits and interest thereon. The Subordinate Judge gave the appellant a decree for Rs.13,975 la. 9p. On appeal by the respondent the High Court reduced this amount to Rs.10,066 15a. 2p. On December 23, 1889, the appellants father, as mortgagee of two villages in suit, had sued the representatives of Jai Chand Rai, the mortgagor, to recover possession thereof in accordance with the terms of the mortgage transaction entered into in 1883. In that suit he claimed arrears of interest for the years 1887 and 1888, and obtained a decree in full on December 1, 1890. The respondent, however, continued in possession of the property and in enjoyment of the profits; and accordingly the appellant again sued to recover these profits as from January 31, 1889. The High Court disallowed that portion of them included in the Subordinate Judges decree, which was referable to the period between January 31, 1889, and December 23, 1889. They based their decree in that respect on ss. 43 and 44 of the Civil Procedure Code Lalessor Babui v. Janki Bibi (( 1891) Ind. L. R. 19 Cale. 615.); Lalji Mal v. Hulasi (( 1881) Ind. L. R. 3 Allah. 660.); Venkoba v. Law. Rep. 28 Ind. App. 11 ( 1900- 1901) Banarsi Parshad V. Kashi Krishna Narain 116 Subbanna. (( 1887) Ind. L. R. 11 Mad. 151.) On remand it was found that this disallowance involved a reduction of the decretal amount as above stated. On July 14, 1896, the High Court certified that the case fulfilled the requirements of s. 596 of the Civil Procedure Code and admitted an appeal, and on November 12 following the appeal was admitted. Ross, for the appellant, contended that mesne profits for the period from January 31 to December 23, 1889, were recoverable in this suit, and that the High Court had wrongly construed ss. 43 and 44 of the Civil Procedure Code. The cause of action in the former suit, decided on December 1, 1890, was not the same as the cause of action in the present suit. 43 and 44 of the Civil Procedure Code. The cause of action in the former suit, decided on December 1, 1890, was not the same as the cause of action in the present suit. The appellant was not bound to include in that suit the particular amount of mesne profits in issue in this appeal. The right to sue for mesne profits is separable from the right to sue in ejectment. [Sir E. Couch referred to ss. 211, 212.J The cause of action includes every material fact which a plaintiff has to prove to obtain a decree. In a suit for mesne profits he has to prove much more than the right to possess the land. A suit, therefore, for declaration of title is separate from a suit in ejectment. Dismissal of the former does not bar the latter see Jibunti Nath Khan v. Shib Nath Chuckerbutty. (( 1882) Ind. L. R. 8 Calc. 810.) [Sir E. Couch. The High Court ought not to have given leave to appeal. It only has jurisdiction to do so when the amount is more than Rs.10,000. It has no power to give leave merely because of a point of law.] But see ss. 595, 600, which give the High Court a discretion. The admission of the appeal was in exercise of this discretion, which it is too late to interfere with after all the costs have been incurred; more especially as the irregularity can be cured by giving special leave to appeal nunc pro tune. The respondents did not appear. Dec. 8. The judgment of their Lordships was delivered by LORD HOBHOUSE. It will be remembered that the argument on the merits of the case was broken off because the property at stake is not such as to give a right of appeal. The amount in question is little more than Rs.4000. When this was called to Mr. Rosss attention, he relied on the allegation that a substantial point of law is involved. Their Lordships have found on previous occasions that the existence of a point of law has been supposed to give a right of appeal in the ordinary course of procedure under the Code. That is a mistake. Sect. 596 of the Code requires that in order to give such a right there must be in dispute either directly or indirectly an amount of Rs.10,000. That is a mistake. Sect. 596 of the Code requires that in order to give such a right there must be in dispute either directly or indirectly an amount of Rs.10,000. If the decree affirms the Court below, another condition is affixed, namely, that the appeal must involve some substantial question of law. The presence of such a question does not give a right when the value is below the mark; the requirement of it restricts the right when the higher decree affirms the lower. It is true that by ss. 595 and 600 an appeal may be granted if the High Court certifies that the case is fit for appeal " otherwise," i.e., when not meeting the conditions of s. 596. That is clearly intended to meet special cases—such, for example, as those in which the point in dispute is not measurable by money, though it may be of great public or private importance. To certify that a case is of that kind, though it is left entirely in the discretion of the Court, is a judicial process which could not be performed without special exercise of that discretion, evinced by the fitting certificate. No such certificate has been given in this case. The certificate runs, "that as regards the nature of the case, it fulfils the requirements of s. 596 of Act No. XIV. of 1882." But it does not fulfil them on account of its small value. Mr. Ross says that the defendant was served with notice, and, not appearing, Law. Rep. 28 Ind. App. 11 ( 1900- 1901) Banarsi Parshad V. Kashi Krishna Narain 117 must be taken to have assented. It is quite possible that owing to the defendants non-appearance the defect in value was overlooked; but even if non-appearance could be taken to signify assent, it cannot give to the plaintiff a right of appeal which the Code does not allow, or sustain a certificate which from some oversight or other is obviously erroneous. Whether, if the learned judges had been asked to say that notwithstanding its small value the case was a fit one for appeal to the Queen in Council, they would have said so, may well be doubted, seeing that Mr. Whether, if the learned judges had been asked to say that notwithstanding its small value the case was a fit one for appeal to the Queen in Council, they would have said so, may well be doubted, seeing that Mr. Ross, whose argument had advanced to some length before the point of value was observed, had not succeeded in impressing their Lordships with the importance of his legal objection to the decree. What is certain is that the learned judges were not asked by the plaintiff to do, and have not done, anything of the kind. And as it is of great importance not to allow litigants who have succeeded in the High Courts to be harassed by further appeal, when there is nothing at stake but amounts of money which the Indian Legislature has decided to be too small to give a right of appeal, their Lordships will humbly advise Her Majesty to dismiss this appeal.