MANCHALA SUBBAREDDY Vs. KYPA HUSSAIN REDDY

JUDGEMENT

(1.) In a suit for the recovery of immovable property and for mesne profits in the Munsiff Court at Banganapalli, a decree for possession alone was passed and the relief as regards the mesne profits was disallowed. The plaintiff appealed to the appellate Court and the appeal was dismissed. On revision to the Chief Court at Banganapalli presided over by the District Judge of Kurnool, in his capacity as the High Court, the petition was allowed and mesne profits awarded. This was on 27th February, 1942. The decree-holder then filed C.M.P. No. 196 of 1942, in the Court of District Munsiff, Banganapalli, for the assessment of mesne profits. After enquiry the Munsiff assessed the mesne profits at Rs. 925 per annum, and decreed to the plaintiff the mesne profits for eight years prior to the suit and three years after the suit. This decree was passed on 26th March, 1946. It was also stated in the decree that the decree shall not be executed unless and until the Court-fee of Rs. 757-7-0 due on the amount decreed was paid and that the said Court-fee could be recovered from the counter-petitioner (defendant) after payment. The judgment-debtor filed an application on 6th April, 1946, seeking to review the above order. It was dismissed for default. A restoration application was filed which was dismissed because it was filed beyond the period of limitation. He again filed an application to condone the delay in filing the petition for restoration. Finally all these petitions were dismissed on 23rd November, 1949. On the ending of these proceedings the decree-bolder paid the Court-fee payable on the amount of mesne profits awarded to him on 6th December, 1949. This Court-fee was accepted by the office. On the same day he filed an execution application and an objection was raised by the judgment-debtor that the application was barred by limitation. The Munsiff before whom the application was filed held that in so far as the execution for future mesne profits was concerned it was barred while execution in so far as it related to past mesne profits was within time. The judgment-debtor filed an appeal being A.S. No. 82 of 1951, and the decree-holder also filed a memo of cross-objections Both these were disposed by a common judgment on 28th November, 1951. The District Judge on appeal held the execution petition barred by limitation, allowed the appeal and dismissed the execution petition with costs. The memo of cross-objections filed by the decree-holder also was dismissed with costs. Hence this appeal.

(2.) It is argued on behalf of the appellant that the decree passed on 26th March, 1946, was not an executable decree; it could not be executed until the Court-fee was paid; it became an executable decree only when the deficit Court-fee was paid by the decree-holder on 6th December, 1949 and accepted by the office, inasmuch as the execution application was filed the same day, viz., 6th December, 1949, there was no question of limitation. A further argument was advanced that even if it be contended that Court-fee was payable immediately, inasmuch as the Court-fee paid by the appellant after the lapse of three years on 6th December, 1949, was accepted by the Court, it must be regarded as though the Court granted time for payment of the same under the provisions of section 149, Civil Procedure Code and if the Court-fee was paid within the period granted and extended by the Court, then no question of limitation could arise. As regards the first argument, my attention was invited to section 11, paragraphs 2 and 3 of the Court Fees Act as amended in Madras. Paragraph 2 of section 11 reads as follows:-

(3.) While paragraph 3 reads as under:-