S K NATHARSA ROWTHAR Vs. SHEIK MUHAMMAD ROWTHAR

JUDGEMENT

(1.) These civil miscellaneous second appeals arise from proceedings in Original Suit No. 93 of 1901 on the file of the District Munsif s Court, Mannargudi. To understand the circumstances in which they arise, and the contentions of the parties in them, it is necessary to state the fasts at some length. Original Suit No. 93 of 1901 was for partition and delivery of plaintiff s share in certain immoveable properties with past and future mesne profits. A decree was passed directing that plaintiff do recover 63/96ths share in the plaint properties, with costs and past and future mesne profits, the amount of which was left to be determined in execution. There was an appeal and a second appeal but, except that the plaintiff s share was varied to 175/288, the decree of the first Court was confirmed. In 1910, after the new Code of Civil Procedure had come into force, plaintiff filed Execution Petition No. 228 of 1910 for the appointment of a Commissioner under Order XXVI, Rule 13, and for the passing of a final decree after dividing the properties and ascertaining the mesne profits Accordingly, a Commissioner was appointed, but, as his report was objected to, the Court held an enquiry itself and passed a judgment deciding the objections raised. As to the mesne profits it stated that a fresh calculation would be made in the light of its remarks and that plaintiff would be entitled to the sum so found due; it did not itself fix the actual amount. It also stated that, there would be a final decree drawn up on the petitioner paying the additional Court-fee, if any, due in respect of mesne profits allowed, within 15 days." This judgment was dated 22nd Marsh 1911, but no Court fee was paid by the plaintiff within the 15 days as directed. Nevertheless, we find a final decree was drawn up, which is Exhibit C 2 in the ease. It bears the date of the judgment but it seems to have been actually drawn up only in July 1911. The material part of it says, this Court doth order and direst that the petitioner do pay additional Court-fee, namely, Rs. 227-8.0 on or before the 6th day of April 1911 and get possession of his share of the properties hereunder described as fixed by the Commissioner in their report hereto attached, and this Court doth further order and decree that the 1st defendant do pay petitioner Rs. 4,441.2 3 for mesne profits and also Rs. 376-12-0 for costs." In September 1911 plaintiff applied, by Exhibit G., for execution of this decree proposing that the Court might take the money due for Court-fee from the amount realised from the defendant. The Court rejected it saying, "the Court-fee should be paid before taking out execution." He again applied in October 1911, Exhibit H, paying the Court-fee on the past profits only, and contending that he was not bound to pay on the future profits. This was also dismissed, the Court holding that he was bound by the decree. He applied again for execution by Exhibit J. paying the whole Court-fee and, by Exhibit K., for extension of time to pay that fee. These were registered as Execution Petition No. 666 of 1911 and Execution Appeal No. 618 of 1911. Both were dismissed; the Court saying on the former, "as Execution Appeal No. 618 of 1916 is dismissed, suit in respect of mesne profits is dismissed. Fresh application for delivery to be put in." There was an appeal to the Subordinate Judge against these orders as well as one against the final decree. He reduced the mesne profits but granted time for payment of Court fee and reserved the order on Execution Petition No. 666 of 1911 and remanded that petition for fresh disposal. In second appeal the High Court, the judgment of which is reported as Nathersa Rowther v. Mahomed Rowther 28 Ind. Cas. 890, held that there was no legal and valid dismissal of the suit for mesne profits but the Appellate Court had no power to extend time and was wrong in redusing the mesne profits. The learned Judges restored the original decree as to the amount of profits but, at the same time, set aside the order of the Subordinate Judge on Execution Petition No. 666 of 1911, which had the effect of restoring the Munsif s order on it, though they had held that his reason was clearly bad, they also granted time for payment of the Court-fee on the amount the Subordinate Judge had disallowed and they had allowed. It is difficult to see why Execution Petition No. 666 of 1.911 was not ordered to be re- tried on the view expressed by their Lordships, and it is not clear under what power they purported to extend time themselves. However, it is not open to the parties now to dispute the correctness of those orders. Their Lordships had also remarked that the defendants would be entitled to move the District Munsif in a proper way to dismiss the suit for profits, and that plaintiff might move for review of the order fixing time and ask for its enlargement.

(2.) Parties have taken advantage of these remarks and have made the suggested applications. Plaintiff had already applied by Execution Petition No. 72 of 1915 for delivery of possession and had got delivery of all except Item No. 11. Plaintiff filed three petitions. In Miscellaneous Appeal No. 28 of 19)5 he asked for review of the order on Execution Appeal No. 618 of 1911 and for excusing delay in payment of Court-fee. In Miscellaneous Appeal No. 29 of 1915 he formally prayed that the Court fee already paid by him may be accepted; in Execution Petition No. 242 of 1915 he asked for delivery of Item No. 11. Defendants also filed three petitions, Miscellaneous Appeal No. 100 of 1915 asking that the whole suit might be dismissed for non-payment of Court-fee in time; Miscellaneous Appeal So. 136 of 1915 for re delivery of the proper, ties delivered under Execution Petition No. 72 of 1915, and Miscellaneous Appeal No. 147 of 1915 objecting to the delivery of Item No. 11. The lower Court dismissed the suit so far as it was for future mesue profits but refused to dismiss the rest of it. They also dismissed the application for review, but ordered delivery of Item No. 11. Thus, Miscellaneous Appeals Nos. 28, 29, 136 and 147 of 1915 were dismissed in toto; Miscellaneous Appeal No. 100 of 1915 was allowed and Execution Petition No. 242 of 1915 was allowed in full. It is against the order on these petitions that the civil miscellaneous second appeals before us have been filed

(3.) The main question for our consideration is, whether the suit was liable to be dismissed, and, if so, to what extent. Mr. K. Srinivasa Aiyangar for the defendants has contended that the present case fell under the 2nd paragraph of Section 1 of the Court Fees Act and as, admittedly, the additional fee was not paid in time, the whole suit should fail. He argued that the word "suit" in the last sentence meant the entire suit an that the rulings in Fulchand v. Bai Ichha 12 B. 98 : 6 Ind. Dec. (N.S.) 551 and in Kewal Kisen Singh v. Sookhari 24 C. 173 : 1 C.W.N. 243 : 12 Ind. Dec. (N.S.) 751 were not correct. But, before we consider this point, we must be satisfied that the present case properly falls under the 2nd paragraph; for it is clear that the dismissal of the suit is not a penalty for default under the 1st paragraph. The 1st paragraph deals with a case where the profits are settled by the decree and the penalty under it for non-payment of the additional Court-fee is, that the decree should not be executed till it is paid; under that paragraph the Court has no power to fix any time for payment, any order to that effect being mere surplusage. See Perianan Chetty v. Bagappa Mudaliar 30 M. 32 : 16 M.L.J. 548 : 2 M.L.T. 23, The 2nd paragraph deals only with a case where mesne profits are ascertained in execution of the decree, the two paragraphs being mutually exclusive. It will be seen from the statement of the facts in thin case that, though the 1st decree directed the mesne profits to be ascertained in execution, they were actually ascertained only by the final decree, Exhibit C 2. Proceedings taken for the purpose of passing final decrees in partition suits have often been held to be proceedings in the suit and not in execution. The first decree in this case was only an interim decree. It seems to me that the word decree in Section 11 should be taken to refer, in cases like the present, to the final decree, for that is the decree in the suit, the interim decree being in the nature of an order in suit. If I am right in this view, the present case will fall under the 1st paragraph of Section 11 and not under the 2nd and the provision in Exhibit C-2 fixing the 6th of April 1911 as the last day for the payment of the additional Court-fee should be ignored.