Mohandass and Others vs Haji Abdullah Saib

Ismail, J.—This is a petition to revise the order of the learned Tenth Assistant Judge city Civil Court, Madras dated 26th November, 1977

made in Execution Application No. 5080 of 1977 in Original Suit No. 3023 of 1961. The Petitioners herein were Defendants 1 to 4 and 6 to 8 in

the suit. The suit was one for recovery of possession and mesne profits. The ultimate decree that remained in force was one passed by this Court

In Second Appeal No. 83 of 1965 on 10th December, 1974 and that decree reads as follows:

This Court while allowing the second appeal and settin aside the decree of the lower appellate Court and restorin the decree of the trial Court with

and modification, order and decree as follows:

(1) that Clause 2 of the decree of the trial Court b deleted and the following clause be substituted, namely.

(I) that Defendants do pay to the Plaintiff the mesne profits at the rate of Rs. 450 (Rupees Four hundred and fifty only) per month from April 1,

1965 to the date of the delivery on payment of Court-fee;

(II) that in other respects the decree of the trial Court do stand.

Clause III provided for costs to be paid to the Appellant in the second appeal. Pursuant to this decree, it is represented that possession of the

property was handed over on 31st December, 1976 and the mesne profits calculated at the rate of Rs. 450 per month amounting to Rs. 63,450

for the entire period, was deposited into the Court on different dates in different amounts. Thereafter the Plaintiff filed Execution Application No.

5080 of 1977 for withdrawing a sum of Rs. 6,750 in Court deposit. The controversy that was raised with reference thereto was that the Plaintiff

had paid Court-fees of Rs. 1,308 for withdrawing the amount of mesne profits deposited by the Defendants into the Court and that the Plaintiff

was entitled to recover the said court fees also from the Petitioners herein another controversy was with regard to the sum of Rs 2,293-50 said to

be due to words Advocates fees in execution. The Petitioners contended before the learned Tenth Assistant Judge that the decree of the High

Court did not provide for the Petitioners reimbursing the Plaintiff-Respondent in respect of the court-fees payable by him on the mesne profits and

that, therefore they were not liable to pay the said court-fees. The Petitioners also disputed the quantum of the Advocate''s fee in execution

payable by them to the Respondent-Plaintiff. The learned Tenth Assistant Judge overruled the objections and directed the payment and

adjustment. (Sic) this order that is challenged in the present civil revision petition.

The two questions that arise for determination in the revision petition are:

(i) Whether the learned Tenth Assistant Judge, City Civil Court, Madras was right in holding that the Plaintiff-Respondent was entitled to the sum

of Rs. 4.308 from the Petitioners being the Court-fees which the Respondent-Plaintiff had to pay as per the decree of this Court for recovering the

mesne profits? and;

(ii) whether the Petitioners are liable to pay the sum of Rs. 2,293-50 towards Advocate''s fee in execution?

As regards the first point, Mr. M.R. Narayanaswami, learned Counsel for the Petitioners, contends that a perusal of the decree passed by the

High Court shows that the High Court had not made any provision for the Petitioners reimbursing the Respondent herein with reference to the

Court-fees payable by him for recovering the mesne profits. However, this argument is countered by the learned Counsel for the Respondent-

Plaintiff putting forward the contention that once the Court had directed that the Respondent-Plaintiff should pay the Court-fees and realize the

mesne profits it is implicit that the judgment-Debtors, namely, the Petitioners herein were liable to re-pay or reimburse the Court-fees so paid by

the Respondent-Plaintiff. In support of this contention, the learned Counsel for the Respondent relied on a decision of this Court in Kolluri Subba

Rao of Rajahmundry Vs. Kolluri Subba Rao, . The head-note to this decision states:

A Plaintiff is entitled to recover in execution from the Defendants the Court-fee that he paid on the amount of mesne profits ascertained as due to

him and decreed in his favour by the final decree. The fact that the final decree did not mention that the Plaintiff would be so entitled cannot mean

that there was no award of any such relief to the Plaintiff. The final decree can only provide for payment of Court-fee by the Plaintiff, who is the

person entitled to recover the mesne profits, but it is not to be expected that the decree will go further and say that, if the Plaintiff pays such Court-

fee. The Defendants would be liable for the same. This is implicit in the decree and in the provisions of the Court-Fees Act which refers to the

analogy of a suit brought for the amount of mesne profits ascertained to be due.

From what I have extracted as the head-note, it is clear that, that decision directly covers the present case except for this difference, namely, that,

that case dealt with a final decree in which mesne profits were ascertained, while in the present case the rate of mesne profits had already been

determined and only the arithmetical calculation of the total amount of mesne profits payable by the Defendants-Petitioners to the Plaintiff-

Respondent had to be worked out, depending upon the point of time at which they actually delivered possession of the property. However, Mr.

M.R. Narayanaswami, learned Counsel for the Petitioners, sought to distinguish the above decision on the ground that it was Tendered under the

Court-Fees Act, 1870 under which the provisions regarding payment of Court-fee in respect of mesne profits as contemplated by Section 11

thereof are different from those contained in the Tamil Nadu Court-fees and Suits Valuation Act, 1955 in Section 44 thereof providing for payment

of Court-fee on mesne profits. The only difference which the learned Counsel points out is that under the Act of 1870 a decree can be passed

without the payment of additional Court-fee on mesne profits, but the decree cannot be executed without the payment of court fee, while under

Tamil Nadu Act XIV of 1955, u/s 44 thereof, a decree itself will not be passed without the Plaintiff paying the Court-fee. In my opinion, this

difference in the provisions does not make any change in the legal position, pointed out by this Court in the decision referred to already. Whether

the Plaintiff pays the Court-fee at the stage of execution or at the stage of drafting the decree itself, the fact remains that his required to pay the

Court-fee and does pay the Court-fee on mesne profits which he realizes from the Defendant. If so, the principle enunciated by the decision of this

Court referred to aboved will clearly apply. Hence, on the first point I hold that the learned Tenth Assistant Judge, City Civil Court, Madras, was

right in coming to the conclusion that the Respondent was entitled to adjust the sum of Rs. 4,308 towards Court-fees which he paid for

withdrawing the mesne profits deposited by the Petitioners into the Court.

As far as the second point is concerned, Mr. M.R. Narayanaswami, learned Counsel for the Petitioners, made it clear that he was not objecting

on principle to the adjustment of the Advocate''s fee in execution, but only, he disputes the quantum. However, Mr. U.N.R. Rao, learned Counsel

for the Respondent, points out that this quantum was a matter of agreement between the parties before the learned Tenth Assistant Judge, City

Civil Court Madras. If it was a matter of agreement, no further question can possibly arise with reference thereto.

Under these circumstances, the civil revision petition fails and is dismissed. There will be no order as to costs.