1. In O.S. No. 414 of 1928, on the file of the District Munsif's Court, Melur, the plaintiff obtained the following decree, on 18th December, 1929:
(1) "That the defendant do put the plaintiff in possession of the property specified in the schedule: hereunto annexed.
(2) That the defendant do pay to the plaintiff the sum of Rs. 60 on account of mesne profits which have accrued due prior to the institution of the suit, and do also pay future mesne profits at the rate of Rs. 60 per year from the institution of the suit until the delivery of possession to the decree-holder or the relinquishment of possession of the judgment-debtor with notice to the decree-holder through the Court or the expiration of three years from the date of the decree whichever event occurs earlier.
(3) That the defendant do pay plaintiff's costs Rs. 45-2-0 and do bear his own Rs. 24-8-0.
2. The decree-holder applied in E.P. No. 615 of 1930 on 23rd September, 1930, for execution of the decree so far as immovable property was concerned and for delivery of possession of the property decreed to him. He also mentioned in the execution petition that he would file a separate execution petition in respect of mesne profits and costs.
3. The plaint had been valued at Rs. 115-10-0 (the same being made up of Rs. 55-10-0 being the value of the relief regarding the land at ten times the annual revenue and Rs. 60-0-0, being the value in respect of past mesne profits for one year) and he paid Court-fee thereon. Objection was raised before the District Munsif that Court-fed should be levied on future mesne profits awarded in the decree before execution in E.P. No. 615 of 1930 is allowed to proceed. The learned District Munsif referred, under Section 113 and Order 46 of the Code of Civil Procedure, the following points for the opinion of the High Court:
(1) In a case where the decree gives the following reliefs to a decree-holder, namely, possession with certain amount for past profits and future profits at a certain ascertained rate, is Court-fee payable on the future profits before any portion of the decree can be executed?
(2) If Court-fee is payable, up to what date is the future profits to be calculated for the purpose of determining the Court-fee?
4. When questions arise regarding Court-fees payable in respect of mesne profits which have accrued on the property the subject of litigation prior to the institution of the suit or for the period after the filing of the plaint, the same have to be decided, so far as Madras is concerned, by reference to Section 11 of the Court Fees Act (VII of 1870) as amended by Madras Act V of 1922 and to the provisions of Order 20, Rule 12 of the Code of Civil Procedure.
5. Section 9 of Madras Act V of 1922 substituted the following paragraphs for the second paragraph of section 11 of the principal act:
Where a decree directs an inquiry as to mesne profits which have accrued on the property during a period prior to the institution of the suit, if the profits ascertained on such inquiry exceed profits claimed, no final decree shall be passed till the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits so ascertained is paid. If the additional fee is not paid within such time as the Court shall fix, the claim for the excess shall be dismissed, unless the Court, for sufficient cause, extends the time for payment.
"Where a decree directs an inquiry as to mesne profits from the institution of the suit, and a final decree is passed in accordance with the result of such inquiry, the decree shall not be executed until such fee is paid as would have been payable on the amount claimed in execution if a separate suit had been instituted therefor.
6. Now, reading the provisions of Section 11 of the Court Fees Act as amended, with Order 20, Rule 12, Civil Procedure Code, the procedure that should be followed in suits for recovery of possession of immovable property and for mesne profits is the following, when the Court finds that the plaintiff is entitled to the same:
7. To pass a decree--(a) for the possession of the property; (b) for mesne profits which have accrued on the property during a period prior to the institution of the suit, or directing an inquiry as to such mesne profits (this may be called "past mesne profits," for convenience) ; (c) directing an inquiry as to mesne profits from the institution of the suit until (1) the delivery of possession to the decree-holder;
(2) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (3) the expiration of three years from the date of the decree whichever event first occurs (this may be called "future mesne profits," for convenience).
8. Analysing the above, we find that in such cases, (1) there is a decree for possession of the immovable property. This is a final decree, and, subject to any just objections, is capable of being executed;
(2) either a final decree for past mesne profits is passed, or the Court passes a preliminary decree for past mesne profits directing an inquiry as to the amount thereof;
(3) there is a preliminary decree directing an inquiry as to the amount of the future mesne profits. When an inquiry is directed either in respect of past mesne profits or in respect of future mesne profits, a final decree in respect of the said mesne profits is to be passed in accordance with the result of such inquiry.
9. Coming to the Court Fees Act as amended, under the first paragraph newly added (which will be paragraph 2 out of the three existing paragraphs of the amended section), if the amount of the past mesne profits ascertained on such inquiry should exceed the amount claimed in the plaint, no final decree relating thereto should be passed till the difference between the Court-fee actually paid and the Court-fee which would have been payable had the suit comprised the whole of the profits so ascertained is paid; and if the additional fee be not paid within such time as the Court shall fix, the claim for the excess amount shall be dismissed. Reading, therefore, this paragraph with Order 20, Rule 12, Civil Procedure Code, the result is that the Court should not pass a final decree in respect of past mesne profits regarding which an inquiry has been directed, when the amount of the same exceeds the amount claimed in the plaint, unless the extra Court-fee be paid.
10. As regards future mesne profits, under the second paragraph of the amended Section 9 of Act V of 1922 (which will be the third paragraph of Section 11 as amended) and under Sub-clause (2) of Rule 12 of Order 20, a final decree in respect of such future mesne profits is passed in accordance with the result of the inquiry, and in cases coming under the said paragraph of the Court Fees Act, the decree is not to be executed until such fee is paid as would have been payable on the amount claimed in execution if a separate suit had been instituted therefor.
11. It will thus be noticed that a final decree for the immovable property is passed. A final- decree for past mesne profits is passed either straightaway, or, after a preliminary decree directing an inquiry as to the amount of the same; in the latter class of cases, the provisions of the amended Section 11 of the Court Fees Act would have operation, with the result that no final decree shall be passed till the extra Court-fee is paid. The wording's of paragraph 2 of section 11 do not apply to a case where a final decree for past mesne profits is straightaway passed fixing the amount of such past mesne profits and without a preliminary decree directing an inquiry as to the amount of the same. In such a case, and to such a final decree, the first paragraph of Section 11 (which is the first paragraph of the old section also) would apply; that paragraph directs that the decree is not to be executed until the extra Court-fee is paid. Why it is provided in the second paragraph that when an inquiry is directed, no final decree shall be passed for the extra amount of past mesne profits, and that the claim for the said excess shall be dismissed under the second paragraph unless the extra Court-fee be paid; and why a different rule is adopted in the first paragraph, where it is provided that the decree shall not be. executed until the extra Court-fee is paid;--all this, is not quite clear. Why it is not provided in the second paragraph of Section 11 that a final decree might be passed for a higher amount of past mesne profits found due, but that the decree for the excess could not be executed unless the extra Court-fee is paid, is also not clear. If the latter alternative had been adopted, there would be no inconsistency of any sort between the provisions of Section 11 and of Rule 12; whereas now as regards passing a decree for past mesne profits there seems to be an apparent inconsistency between the two provisions. No doubt the two provisions could be read together, and the provisions of Rule 12 enabling a Court to pass a final decree straightaway may be said to be governed by the first paragraph of Section 11 of the Court Fees Act.
12. When we go to Sub-clause (2) of Rule 12, we find that a final decree has to be passed in respect of future mesne profits when an inquiry is directed under Clauses (b) and (c) of the rule. Here the policy of the Court Fees Act as disclosed by the last paragraph of Section 11 is to prohibit, not the passing of the final decree, but only the execution of the same until the necessary Court-fee is paid.
13. It is a question for consideration whether the same policy should not be adopted also with reference to past mesne profits where a decree directs an inquiry into the same, and whether for the sake of uniformity--if not for other reasons--paragraph 2 of section 11 should not be amended, enabling the Court to pass a final decree in such cases, but prohibiting execution in respect of the extra amount of such mesne profits unless the necessary Court-fee be paid.
14. It should also be noticed that there is no specific provision to cover cases where a final decree for future mesne profits is straightaway passed, without a preliminary decree directing an inquiry as to the amount of the same. The question would accordingly arise whether the first paragraph of Section 11 of the Court Fees Act would cover the case of future mesne profits in respect of which a final decree was passed straightaway, without a preliminary decree directing an inquiry into the same as aforesaid. In this connection, the decisions of this High Court reported in Maiden v. Janakiramayya (1898) I.L.R. 21 M. 371 and Saminatha v. Muthuswami (1909) 20 M.L.J. 98 would be relevant, where this Court followed the decision in Ramkriskna Bhikaji v. Bhimabai (1890) I.L.R. 15 B. 416 in preference to the decision in Dwarka Nath Biswas v. Debendra Nath Tagorc (1906) I.L.R. 33 C. 1232. The decision of the Full Bench in Parameswara Pattar, In re (1930) 59 M.L.J. 469 (F.B.) was also mentioned to us. The rule of construction that the words of a taxing statute should not be strained to tax the subject would also be relevant in such a case. However, for the purpose of disposing of the reference before us, it is not necessary to go into that question at present.
15. Difficulties could be avoided if Courts, when called upon to pass decrees relating to mesne profits, follow strictly the provisions of Order 20, Rule 12, Civil Procedure Code, read with Section 11 of the amended Court Fees Act. Courts should also remember that it is not now permissible to leave the amount of mesne profits to be ascertained in execution proceedings.
16. The first point on which our opinion is asked, having regard to the facts of the case, is whether the decree-holder is entitled to execute the decree and claim possession of the immovable property, without paying the Court-fee, if any, payable on the future mesne profite. It was held in Fulchand v. Bai Ichha (1887) I.L.R. 12 B. 98 that a plaintiff who obtained a decree for delivery of a house and for account books and documents, and also for mesne profits, could execute that part of the decree which ordered delivery of the house, books and documents, without paying the Court-fee payable on the amount of mesne profits. The intention of the Legislature, as gathered from the amendments made in 1922, would also seem to point out in the same direction; for in cases coming under paragraph 2 of section 11 as amended, the claim for the excess past mesne profits only shall be dismissed, if the necessary Court-fee be not paid; and similarly under paragraph 3, a final decree regarding the future mesne profits shall not be executed until the necessary Court-fee be paid (it may be noted that the Court-fee payable in respect of such future mesne profits is calculated on the basis that a separate suit for the said amount of mesne profits has been instituted--a principle different from that underlying the other paragraphs of Section 11, and which may have relevancy in considering which of the two sets of decisions mentioned above would be more consonant with the amended section). The penalties therein referred to relate only to the amounts of profits in question in respect of which Court-fee has to be paid. The penalty does not extend to the other portions of the decree. Further, at the time of applying for execution of the decree by delivery of possession of the immovable property decreed, it may not be possible to fix the exact amount of future mesne profits due, and therefore it may be impossible at that time to fix the amount of Court-fee payable in respect of the same. The decree-holder may apply for possession of the immovable property soon after the decree, and may not know when exactly possession would be delivered to him and for what exact period he would be entitled to claim future mesne profits. In such circumstances, it is difficult to say on what amount he is to calculate and pay Court-fee in respect of such future mesne profits.
17. The answer, therefore, to the first question is that the decree-holder would be entitled to execute his decree with reference to possession of immovable property, irrespective of the question whether Court-fee has or has not to be paid on the future mesne profits decreed to him by the same decree.
18. As our answer to the first question is in the negative, the second question need not be considered and we accordingly record no opinion on the second point referred to us..
Reilly, J.
19. I agree.