AMMAN AMMAL Vs. MUTHUSWAMI CHETTIAR

JUDGEMENT

(1.) The liability of a party claiming mesne profits by way of restitution to pay Court-fee on that claim arises in this Civil Revision Petition. The petitioner was the 1st defendant in a suit, which was laid by the plaintiff for recovery of possession of two items of property, a piece of land and a house. The petitioner resisted the suit on various grounds and also claimed title to the house. Both the District Munsif and the District Judge on appeal held against the petitioner's claim in respect of the house. On the strength of the decree granted by the District Munsif the plaintiff obtained possession of the house from the petitioner, and promptly he demolished a portion of the house and let out the other portion of the house. A compromise was entered into at the stage of Second Appeal by which petitioner's title to the house was recognised and she was declared to be entitled to possession thereof. The decree passed by this Court was based upon this compromise. In pursuance of this compromise decree the petitioner applied for delivery of possession of the house and payment of Rs. 1,500 damages caused to the portion of the house demolished by the respondent and Rs. 10 per mensem from the date when the respondent took possession of the house under the decree of the District Munsif till date when possession is given representing mesne profits or rent collected from the remaining portion of the house. The learned Subordinate Judge of Kumbakonam has passed an order calling upon the petitioner to pay Court-fee upon this claim for mesne profits. The Revision is directed against that order. Obviously Section 44 of the Court-fees Act, 1955, does not apply to this case. The claim for mesne profits does not arise in the suit. Mr. Ramanujam appearing, for the learned Government Pleader contends that a suit for mesne profits ought to have been instituted and in such a case Court-fee would have been payable and the petitioner is enabled to bring this matter by way of an execution application merely because of the provisions of Section 47, Civil Procedure Code. As is well known, Section 47 provides for determination of questions by the executing Court relating to execution, discharge, or satisfaction of a decree. Sub-clause (2) of that section reads thus:

(2.) The question that a suit in respect of matters covered by Section 47 would be barred has no relevance to the point now before me. The real question would be what is the nature of the claim made in the present application. Is it in the nature of an independent claim for mesne profits as such for which a suit should have been laid or is it merely in the nature of a claim for restitution If it is the latter, certainly no Court-fee could be levied despite the application of Section 47. Clause (2) of Section 47 is merely an enabling section which gives power to the Court to treat an application as a suit and in suitable cases to demand payment of Court-fee. The demand for payment of Court-fee in an application treated as a suit under Section 47(2) will depend not upon the mere fact that the application is ordered to be registered as a suit, but, in my opinion, upon the nature of the claim. The essence of restitution, as has been repeatedly laid down by this Court in numerous decisions, is not the disgorging of illegal profit made by a party by taking possession of the property under a wrong decree but to compensate a party, who has been deprived of a right or property by reason of a wrong decree, which was set aright by the appellate Court. To enable Courts to render justice in such cases, Section 144 provides power for the Court to pass such orders by way of payment of interest or awarding mesne profits to the successful party. Even apart from Section 144, Civil Procedure Code, the Court has inherent power to pass suitable orders to compensate the party who was kept out of the property by reason of a wrong decree which was subsequently set aright by an appellate Court. In this case the compromise decree in Second Appeal recognised the right of the petitioner to possession of the house even on the date of the plaint. Therefore the proper decree which the first Court should have passed was a decree recognising the petitioner's right to possession of the house. If such a decree had been passed the petitioner would not have lost possession of the house and would have remained in possession and continued to enjoy the property. It is to set right this loss, which the petitioner sustained by reason of the wrong decree of the lower Court, the application for restitution became necessary. It is not really a claim in the nature 6f an independent claim for mesne profits arising in a suit. As I have already pointed Out in essence it is only a relief in the nature of restitution for which no Court-fee is payable. The order of the Subordinate Judge is, therefore, set aside and he is directed to restore the execution petition to his file and dispose of it according to law.