KANCHAN MANDAR Vs. KAMINI PRASHAD CHOWDHURY

JUDGEMENT

(1.) THIS application raises a question apparently of first impression. The petitioners were the defendants in an action for recovery of land and mesne profits. The plaintiff valued the relief for recovery of the land at Rs. 1,020 and of the mesne profits antecedent to the suit at Rs. 4,199-8. The Court below made a decree in favour of the plaintiff, which entitled the plaintiff to recover possession of the land and also to realise mesne profits to be subsequently ascertained. The defendants appealed to this Court, valued their appeal at Rs. 5,219-8 and paid Court-fees on the memorandum of appeal ad valorem. Daring the pendency of this appeal, proceedings for the assessment of mesne profits have been carried on in the Court below and mesne profits have been assumed at Rs. 2,570-1-10. A decree for this sum has now been made in favorer of the plaintiff. The defendants now, desire to appeal against this decree for mesne profits. The question arises, whether they can be called upon to pay Court- fees upon the memorandum of appeal. They have already paid Court fees upon the claim for mesne profits valued at Rs. 4,199-8, and they cannot, in our opinion, be called upon to pay Court-fees a second time. Under Section 97 of the Code of 1908, they were bound to appeal against the preliminary decree and they have done so upon payment of full Court-fees. That preliminary decree has meanwhile been carried into effect and a final decree made by which the liability of the defendants has been fixed at a sum, smaller than what is claimed by the plaintiffs. Consequently, it is not incumbent upon the defendants to pay Court-fees a second time. If mesne profits had been decreed for a higher sum than what is claimed in the plaint and if the plaintiff had obtained a decree for such sum upon payment of additional Court-fees, the defendants might have been called upon to pay the difference between the Court-fees payable on the sum ultimately determined and the sum originally mentioned, respectively. The reason why a question of this character has not been raised before, is explained in the decision in Bunwari Lal v. Sheo Sanker Misser 1 Ind. Cas. 670 : 13 C.W.N. 815, where it was pointed out that an erroneous practice has hitherto been followed by which the defendant was allowed to prefer an appeal to this Court against a preliminary decree for mesne profits upon payment of Court-fees of Rs. 10. We hold, therefore, that the appellants are not liable to pay Court-fees upon the present memorandum of appeal, and we may add that the learned Government Pleader, who has appeared on notice, concedes that this is the correct view of the law.

(2.) THE appeal will accordingly be registered.