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Chikka Kempakka Vs. Matchappa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 575 of 1954
Judge
Reported inAIR1959Kant168; AIR1959Mys168; (1958)36MysLJ421
ActsCode of Civil Procedure (CPC), 1908 - Order 20, Rule 12; Mysore Courts-fees Act, 1900 - Sections 8
AppellantChikka Kempakka
RespondentMatchappa and ors.
Appellant AdvocateM.R. Janardhanam, Adv.
Respondent AdvocateS. Krishnappa, Adv.
Excerpt:
- indian succession act (39 of 1925), section 59 & 63: [a.n.venugopala gowda, j] proof of execution of will held, when the genuineness /execution of the will is questioned, the due execution has to be proved by the person who produces the document to make or establish any claim. hence, to prove the execution of the will, the examination of at least one attesting witness is necessary. however, though a will, ordinarily must be proved, keeping in view the provisions of section 63 of the indian succession act and section 68 of the evidence act, in the event of the unavailability of the attesting witnesses on account of death or other similar circumstances being brought on record, the proof of execution of the will and attestation can be considered in the relaxed manner by having recourse..........on the file of the second munsiff, bangalore for possession of the suit properties and also for mesne profits. the suit was decreed. later no be filed i. n no. 10 under order xx rule 12 c. p. c. for ascertaining the mesne profits. the teamed munsiff assessed the mesne profits at rs. 185/- and passed an order accordingly on 16-6-1954. but in that order lie also mentioned that the required court fee shall he paid within 15 days and if not so paid the i. a. will stand dismissed.the learned counsel for the petitioner says that this portion of the order was not mentioned in the 'a' diary. he had applied for a copy of the order on 18-6-1954, but he was given that copy only on 13-9-1954. meanwhile on 6-7-1954 the learned judge dismissed i. a. 10 on the ground that the court lee in question.....
Judgment:
ORDER

1. The plaintiff is the petitioner herein. He filed O. S. 140/46-47 on the file of the Second Munsiff, Bangalore for possession of the suit properties and also for mesne profits. The suit was decreed. Later no be filed I. N No. 10 under Order XX Rule 12 C. P. C. for ascertaining the mesne profits. The teamed Munsiff assessed the mesne profits at Rs. 185/- and passed an order accordingly on 16-6-1954. But in that order lie also mentioned that the required court fee shall he paid within 15 days and if not so paid the I. A. will stand dismissed.

The learned counsel for the petitioner says that this portion of the order was not mentioned in the 'A' Diary. He had applied for a copy of the order on 18-6-1954, but he was given that copy only on 13-9-1954. Meanwhile on 6-7-1954 the learned Judge dismissed I. A. 10 on the ground that the court lee in question had not been paid. According to the learned counsel for the petitioner this order was also passed in chambers and he was not aware of it till ha was given the copy of the order on 13-9-1954. Hence he did not know that the learned Judge had required him to pay the court fee in question within 15 days.

2. The petitioner's main contention is that the learned Judge had no jurisdiction to pass an order in the form in which he had passed. He could not stipulate in the order that the court fee in question should be paid within any particular period. The relevant section which provides the court fee to be paid for mesne profits assessed is Section 8 of the Mysore Court Fees Act. The said section reads as follows:

'In suits for mesne profits or for immoveable properly and mesne profits, or for an account, if the profits or amount decreed are or is in excess of the profits claimed or the amount at which the plaintiff valued the relief sought, the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount so decreed shall have been paid to the proper officer.

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 the profits claimed, no final decree shall be passed till the difference between the fee actually paid and the fee which should 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 bo 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.'

According to this section it merely requires that 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. It is left to the petitioner to decide as to when he should pay the court fee. All that he is required to do is that he should pay the court fee before the execution of the decree. It is not open to court to stipulate any date by which the court fee should be paid.

This was also the view expressed in the case re-ported in Thibbi v. Ahmed Sab 15 Mys LJ 245. am inclined to agree with the petitioner's contention that the under passed by the learned Munsiff was without jurisdiction and as such is liable to be set aside. The order, in so far as it relates to court fee, is hereby set aside and the learned Munsiff is directed to receive the necessary court fee and execute the decree if the petitioner applies for the same. In the circumstances of this case I direct that the parties shall bear their own costs.

3. Order accordingly.


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