Mukerji, J.:— This appeal has been filed as an appeal against an order made in execution of a decree. This seems to be wrong. The appellant brought suit for recovery of possession over three properties and he asked for mesne profits. The suit was decreed in respect of one ??? the properties and a certain order was passed in respect of mesne profits. I was to the effect: “The amount of mesne profits will be settled in the execution department.”
2. The appellant made an application to the Court below for preparation of final decree under the provisions of O. 20, R. 12(2) of the CPC. His application has been disallowed on the ground that the judgment did not direct payment of any mesne profits to the appellant. It is against this order the present appeal has been filed.
3. The assessment of mesne profits is a proceeding in the suit and it has nothing so do with the execution department When the mesne profits are assessed a final decree is to be passed under the provisions of the Code of Civil Procedure already quoted. The law requires the plaintiff in a claim for mesne profits, to asessess the amount of mesne profits and ??? pay court-fee on that amount. When on a subsequent enquiry an assessment of mesne profits is made, if any further court-fee is payable, it has to be paid. In payment of the court-fee a regular decree comes into existence. The same rule would apply to the present case.
4. The appellant has valued his claim for mesne profits at Rs. 15,106-12-7. His right to this amount has been negatived. His appeal is therefore directed against what amounts to a decree and not an order in the execution department.
5. We hold that an ad valorem court-fee is to be paid on the above mentioned sum.
6. We have heard the counsel for the parties and they accept our finding as so the liability of the appellant to pay court-fee as correct. The learned counsel for the appellant asks for six weeks' time so make good the deficiency. We grant the time. After the deficiency is made good, the parties will be entitled to have such documents as they think necessary for the determination of the case translated and printed. The appeal will be created as a regular appeal.
7. Mr. Malik for the respondent asks for costs. The question of costs will be determined when the matter is finally decided.
B.V/R.K
8. Order accordingly.
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