G. Krishna Iyer vs Sri Kailasanather Koil Devasthanam

Ramaswamy, J.—In this appeal subsequent mesne profits was decreed at Rs. 100 per month. This amount was being deposited, according to the High Court''s order staying execution, by the judgment-debtor and it was being withdrawn at the instance of the objection raised by the lower Court, on paying the requisite court fee thereon as and when the amounts were periodically withdrawn. Only a sum of Rs. 200 remained to be paid in regard to which an execution petition was filed, because the judgment-debtor refused to pay the same on some legal grounds. The contest before us now is whether the court-fee paid on the amounts periodically withdrawn, should be included in the costs of execution. That such amounts can be withdrawn only on payment of court-fee was the view taken by a Bench of this Court in Sait Parasuram Byas Vs. Matte Atchutaramarao, . The Bench held that the amounts paid by way of court fee should be allowed as coats. But recently in a decision of this Court in C.R.P. No. 1797 of 1952 Nagalinga Nadar v. Amirtha Pandian (1955) 1 M.L.J. (N.R.C.) 53, (2) decided by Mack J. a contrary view has been held, viz. that court-fee need not be paid on these withdrawals from Court. The reasoning of Mack J, was that such withdrawals would not be tantamount to execution of a decree. The learned Judge has also referred to the decision of The Province of Madras Vs. P.L.P. Ramaswami Chettiar and Others, . where a similar view was expressed, viz, that court-fee can be recovered only when the decree is executed.

The Bench decision of this Court can be clearly distinguished because there in the overriding circumstance was that there was a provision in the decree itself directing payment of court-fee and therefore the learned Judges held :

We must read and decree as a whole just as the executing Court, when faced with the necessity of deciding whether to issue a cheque to the plaintiff or not, is bound to do. And if one reads the decree as a whole, one is compelled to conclude that it is not until the plaintiff actually pays the additional court-fee which is obligatory upon him according to the terms of the decree, "that the full liability of the fourth defendant will be ascertained.

But it has been held in several decisions that no direction to that effect is necessary and if the decree contains a direction to pay court-fee it is not part of the decree : Periannan Chetti v. Nagappa Mudaliar 30 Mad. 32. Lakshmanan Chettiar v. Chidambaram Chettiar 65 M.L.J. 526=38 L.W. 572. and Kunjammal v. Krishna Chettiar 66 L.W. 558. If the matter had really stood thus, I would have followed the decision of Mack J. and disposed of this matter. But there is another complication, viz. that an execution petition having been filed for recovery of the sum of Rs. 200, court fee will have to be paid on the entire amount due until then, as required by S. 11 of the Court Fees Act: Veeran Chetti v. Veeran Chetti I.L.R, 1938 Mad, 1050= 47 L.W, 808.

The only advantage to which the appellant would be entitled to before me is that if court fee had been paid at higher rates at the time of the withdrawal of these monthly instalments, he will be liable to pay a lesser court-fee if the same had been calculated on the aggregate amount. Therefore, post the matter again for further hearing. On this matter being set down today and after further hearing the learned Advocates, it is found that the appellant would be entitled only to the difference between the court-fee calculated at the higher rate at which the court-fee was paid at the time of the withdrawal of these monthly instalments and the lower rate at which he would be entitled to pay on court-fee being calculated on the aggregate amount. To that extent, they would stand allowed as coats. The respondent is found entitled to the issue of a certificate for the refund of the court-fee to the extent allowed and the appellant will not be liable to the respondent for that amount. No order as to coats.