MARIMUTHU PILLAI Vs. ABDUL GANNI ROWTHER

JUDGEMENT

(1.) The appellant was the decree-holder in O.S. No. 309 of 1930 on the file of the District Munsiff's Court of Valangiman at Kumbakonam. He had obtained a decree for past and future profits on the 7 December, 1933. He filed a petition to execute the decree on the 24th February, 1934, without paying the court-fee payable on the relief claimed in respect of the future profits; but he had included in it the claim in respect of the past profits also. It was returned on the 28 February, 1934, for complying with certain defects and also for payment of the court-fee. The defects were complied with but the court-fee was not paid. The appellant's contention was that no court-fee was payable. The petition was therefore posted to be heard in Court on 16 April, 1934. The vakil happened to be absent and the petition was dismissed for default on the 27 April, 1934. Another execution petition was filed on the 26 April, 1937, for the very same reliefs which were prayed for in the previous application but without payment of court-fees in respect of the claim for future profits. That application also was defective and was returned. The defects were complied with and the petition was posted to the 23 June, 1937, for being heard on the question whether any court-fee was payable in respect of the claim for mesne profits or not. The Court pronounced an order on the 9 July, 1937, that court-fee was payable and gave the appellant time till the 20 July, 1937, for payment of the same. The court-fee was not paid and the petition was dismissed on 20 July, 1937. The execution petition out of which the present appeal arises was filed on the 20 July, 1940. The judgment-debtors contended that the petition was barred by limitation and that the orders on the two prior applications would not furnish any starting point of limitation.

(2.) The first Court held that they were applications made in accordance with law and the orders dismissing those applications would afford a fresh starting point of limitation and that the petition was in time. The lower appellate Court on an appeal filed by the judgment-debtors found that the two prior petitions were not in accordance with law as the requisite court-fee was not paid and therefore the orders passed on them cannot furnish any fresh starting point of limitation to the decree-holder. He accordingly dismissed the petition. Hence this appeal.

(3.) The learned Subordinate Judge relies upon a decision of the Judicial Commissioner of Sind reported in Lakshmichand V/s. Gokuldas . It is no doubt a case directly in point, but I do not think he was justified in following that decision when decisions of this Court and of the Bombay High Court have held to the contrary. It is not the respondents contention that the petitions were not in accordance with law on any other ground than that court-fee payable in respect of the portion of the claim for future mesne profits had not been paid. All that Section 11 of the Court-Fees Act states is: The decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount so decreed shall have been paid to the proper officer.