LAWS(PAT)-1950-3-27

HAKIM MD IDRIS Vs. KABIR

Decided On March 20, 1950
HAKIM MD. IDRIS Appellant
V/S
MD. KABIR Respondents

JUDGEMENT

(1.) This case has a long and complicated history; but the question posed for decision in this appeal liea within a short compass. The appellant brought the suit for a declaration of title, for possession and mesne profits with respect to 1/9th share of certain villages which belonged to her parents Fazl Imam and Bibi Zohra, The respondent who was her eldest brother admitted her claim. The other defendants effected a compromise with the appellant which was recorded by the Court. On 9th February 1926 the appellant obtained a decree for possession of her share and for mesne profits. It is not necessary to trace in detail the further stages of the litigitions. On 28th March 1934, the plaintiff filed an application for ascertainment of mesne profits from the respondent with respect to her share according to the preliminary decree. Mr. Bagchi who was the Subordinate Judge at the time issued notice to the parties, recorded evidence of witnesses and on 8th March 1939 adjudicated the quantum of mesne profits. The last paragraph of his order states :

(2.) On 21st April 1939, the appellant was informed that she ought to pay Rs. 292-8-0 being ascertained amount of court-fee. The appellant apparently took no action but on 13th March 1945 after a lapse of about six years the appellant paid the requisite amount of court-fee and asked that a final decree for mesne profits should be prepared. The respondent objected that the execution of the decree was time barred and that the decree cannot be revived by payment of court-fee after a lapse of more than three years. Mr. S.K. Prasad, Subordinate Judge, upheld the objection of the respondent holding that the final adjudication between the parties regarding the amount of mesne profits was given on 8th March 1939, which date must therefore be taken to be the date of the decree; and the question of court-fee payable was a mere matter of calculation and the Court had nothing further to adjudicate in order to determine the amount of court-fee. The Subordinate Judge therefore refused to prepare another final decree.

(3.) In support of this appeal, Dr. Qazi Nazrul 'Hassan addressed the argument that on 8th March 1939 the decree was passed on condition that the necessary court fee was deposited, that limitation would run from the date when proper decree was drawn after the amount of court-fee was paid. Learned counsel submitted that the Subordinate Judge ought to have drawn a fresh decree on the date the necessary court-fee was paid.