Krishna Rao, J.
1. The above appeals which involve a determination of proper court-fee payable on the Memorandum of first appeal, arises in the following circumstances.
2. The respondent in the above two letters Patent Appeal filed a suit in O.S. 36/63 in the Court of Subordinate Judge, Gudivada against the above appellants for recovery of a sum or Rs.15,000. The paintiff alleged that he purchased the property at a Court auction on 1-7-1957 and that he was deprived of possession of the property and of enjoying the profits thereof. by the defendants having taken proceedings to get the sale set aside and thereby delaying the confirmation of the sale until 4-3-1963. The suit was contested on the ground that the plaintiff is not entitled to profits till the confirmation of the sale, and that the suit is barred by limitation etc. That trial Court. while holding that the plaintiff is entitled to profits and 1-7-1957 to 17-6-1963 did not determine the quantum of the profits but directed the same to be decided on a separate application and accordingly passed a preliminary decree for mesne profits against the above appellants. In the suit, be plaintiff valued the profits tentatively as Rs.15,000/- for purpose of court-fees as well as jurisdiction and paid ad valorem court-fees of Rs. 1,086 thereon. Against the preliminary decree. the above appellants (defendants) filed appeal No. 259/64 in this Court valuing the appeal at Rs.15,000/- as in the trial Court but as no decree for mesne profits was passed for any specified amount they paid a fixed court-fee of Rs. 300/- according to Section 47 of the Andhra Court-fees Act. Pending appeal No. 259/64, the plaintiffs respondents filed a petition C.M.P. 4095/68 in this Court calling upon the appellants to pay advalorem court-fees as in the trial court and to dismiss the appeal if they do not pay Court-fees accordingly. The appellants while opposing the application filed another petition C.M.P. 4227/68 alleging that no court-fees at all is payable on the memorandum of appeal except Rs. 2/- as on a petition to the High Court and accordingly payed for a refund of the excess court-fee paid by them. These two applications were disposed of by our learned brother Vaidya, J., on 19-3-1968 allowing the application of the respondent and directing the appellants to pay ad valorem court-fees as in the trial Court. Consequently the application for refund filed by the appellants was rejected and two month's time was given for them to pay the deficit court-fee. The learned solely to profits the appeal against the preliminary decree directing enquiry into the quantum of the profits should be regarded as a claim for a declaration that the respondent is not entitled to profits. Hence the learned Judge was of the opinion that though the amount is not ascertained the defendants should pay the same court-fees a in the trial Court. Against the above order, the appellants filed these appeals under Clause 15 of the Letters Patent.
3. In these appeals, the question for consideration is whether the court fee paid on the Memorandum of Appeal in A.S. No. 259/64 is correct. The view constantly taken by the Madras High Court under the Madras Court-fees Act a party files an appeal challenging the mere direction to ascertain the mesne profits. In Kandunni Nair v. Itunni Raman Raman Nair, AIR 1930 Mad 597. A Division Bench of the Madras High Court observed as follows:
'Where however, a preliminary decree only makes provision for the subsequent determination of the mesne profits we think that the apt occasion for requiring defendant to pay a court-fee in this respect would be if and when the profits have been determined by a fine decree. To require him to pay now a court-fee upon the profits as estimated in the plaint, where there is as yet no question as to their amount but only as to the right of the plaintiff to receive them, appears not only difficult to justify on principle but also to lead to the difficulty that if the defendant subsequently has to appeal against the amount of mesne profits awarded by the final decree, he would pay court-fee twice over. We do not think therefore that at the present state the fee payable should comprise this item.'
The above decision was followed by Chandrasekhara Sastry J, in Venkata Ramana, assign Rao v. Appalaraju, (1965) 2 Andh WR 142 which arises out of a suit for partion and separate possession with a prayer for past mesne profits of Rs. 1,500/-. On the estimated amount of Rs.1,500/- the plaintiff therein paid ad Valero court-fee in the suit, but with-out any asceratinment of the quantum of the profits the Court merely passed a preliminary decree for partion with a direction to enquire into the mesne profits including past profits. Even after the passing of the Andhra Court-fees Act, the learned Judge held that the same principle enunciated in the Madras Case. AIR 1930 Mad 597, applied when the appeal is filed against a preliminary decree merely directing an enquiry into the profits, the principle being that the subject-matter of the appeal cannot be said to refer to any specified sum of money which the appellants should challenge. There is however another line of cases in which the defendant-appellant is required to pay ad valorem court-fee on the amount actually determined by the trial Court . Similarly, a plaintiff who is given a decree for profits for a sum less than what he claimed in the plaint has to pay ad valorem court-fees in an appeal filed by the plaintiff on the amount which was disallowed. But the instant case is governed by the principle stated in the Madras case, AIR 1930 Mad 597, followed by Chandraskehra Sastry J,, in the above ruling and we do not see any reason to differed from the said view.
4. In the order appeal, the decision of Chandraskehara Sastry, J. was distinguished on the ground that the claim for profits was not an independence claim but was an ancillary relief. But we do not think that this makes any real distinction in principle. In the instance case the plaintiff did not seek any declaration of his title as Court auction purchaser but merely filed on independent suit for recovery of profits which is purely incidental to his title as a Court auction purchaser. Hence we do not agree with the reasoning of the learned Judge that the dispute as to profits should be treated as a suit for a declaration with respect to the profits claimed. It was contended before the learned Judge that the appellants have to pay the same court-fees as in the trial Court as per Explanation (1) to Sec. 49 of the Andhra Court-fees Act which is as follows:-
'Whether the appeal is against the refusal of a relief or against the grate of the relief, the fee payable in the appeal shall be the same as the fee that would to payable on the relief in the Court of First instance'.
In the present case, we cannot say that this is an appeal against the grant of relief claimed in the plaint. The relief claimed is for a decree of Rs.15,000/- but the decree merely directed the determination of the profits. Hence we do not see how the defendants should pay ad valorem court-fees under Explanation (1) to Section 49, So far as the court-fees payable in the trial Court was concerned, the plaintiff had to estimate his profits as per Section 41 of the Andhra Court-fees Act. He accordingly estimated the same and paid ad valorem court-fees. But by no fault of the parties there was no adjunction as to the quantum of the profits. Under Section 49 of the Andhra Court-fees Act relating to payment of court-fees in Appalls, the test is to determine the subject-matter of the appeal. As we have already pointed out the subject-matter if the sense that the amount is unascetained . The only question for decision in the appeal is as to the maintainability of the claim for profits for one reason or the other. We are therefore of the opinion that the appellants need not pay ad valorem court-fees in the appeal is in the trial Court. Hence C.M.P. 4095 of 1968 filed by the respondent disputing the court-fee paid in the appeal is dismissed.
5. The next question for consideration is whether the appellants should get refund of the court-fees in the view that no court-fee need be paid at all. In cases where the subject-matter in dispute is incapable of valuation a fixed court-fees was payable under the Madras Court-fees Act. But under the Andhra Court-fees Act. Though there are certain specific provisions with regard to cease in which the dispute is not capable of valuation. residuary section 47 was introduced covering all cases. Where there was no specific provisions in the act Section 47 obviously takes in cases where the subject-matter is incapable of valuation and not otherwise specifically provided for. We therefore hold that the provisions of Section 47 of the Court-fees Act apply to a case like the present one and the Court-fees of Rs. 300/- paid by the appellant under Section 47 of the Andhra Court-fees Act in correct and that the appellant is not entitled to any refund of court-fees.
For the above reasons, L.P.A. No.72 of 1968 is allowed with costs and L.P.A. No.73 of 1968 is dismissed; but without costs.
6. One appeal allowed and another dismissed.