RARAANARASINGARAO Vs. APPALARAJU

JUDGEMENT

(1.) THIS is an appeal by the 1st. defeodant in a suit for pariition and separate possession of the plaintiff' share and foi past mesne profits. The plaintiff claimed, in thii suit, a sum of Rs. 1, 500/-to wards past profits and paid Court fees thereon as prescribed by the Andhra Court Fees and Suits Valuation Act, 1956. The lower Court passed a preliminary decree for partition in plaintiff's favour and directed an enquiry into mesue profits. But the 1st defendaat- appellant in this appeal has not paid any Court-fee for this relies of enquiry into mcsne profits granted by the decree of the Court below. The stand taken ay him is that the case is governed by the decision of the Madras High Court in Kandunni Nair v. Raman Nair and that, since, in this case, the decree under appeal only directed an enquiry into mesne profits, there is no decree for aay specific amount in plaintiff's favour and that, therefore, no Court-fee is payable in the appeal against that direction in the decree. The office has taken the stand that the Court fee has to be paid on the amount of Rs 1, 500/- which is claimed by the plaintiff in the plaint and on which amount, Court fee was paid on the plaint, though there is no decree for any specific amount and though the quantum of mesne profits have yet to be ascertained in separate proceedings. It cannot be disputed that, if the case is governed by the Madras Court-fees Act, no Court-fee at all is payable by the 1st. defendant-appellant in this appeal on the direction in the decree of the lowerCourt that mcsne profits have to be enquired into in separate proceeding. But the office white pointing out that the present Act has not made any special provision in this behalf, suggested that the case, by analogy, can be 4 brought under Expla. nation 1 to Section -49 of the Andhra Court-fees and Suits Valuation Act. 956 It is further suggested by the office that the relidf for mesne profits was in the plaint which was valued at Rs 1, 500/- and Court-fee was paid on that amount and that, in view of Explanation 1 to Section 49, in the appeal also, same amount of Court-lee has to be paid with respect to that relief of mesne profits, I do not think that application of the provisions of taxing statutes or provisions of an Act like the Court-fees Act, by way of analogy ig permitted. Explanation 1 to Section 49 cannot be applied by way of analogy to a case like this. The relief granted by the Court below viz., a direction to enquire into the mesne profits could not be valued as such by the plaintiff It could be valutd only if a decree for specific amount was granted by the lower Court. Thus, Explanation 1 to Section 49 is not applicable. The decision dated 4th. October, 1963 of Krishnn Rao, J. in A. S. No. 70/60 has no applica. tion to this case. That was a case of an appeal by the plaintiff and was direc" ted againtt the refusal of the mesne profits claimed to the extent which it was ordered to be set off against the amounts advanced by the 1st. defend

(2.) THE learned Judge held that, under