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Mt. Fatima Bibi Vs. Shafiullah Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All206; 153Ind.Cas.476
AppellantMt. Fatima Bibi
RespondentShafiullah Khan
Cases ReferredSeodhin Singh v. Narangi Lal
Excerpt:
- .....in revision by a plaintiff. the circumstances, are that the plaintiff sued for possession and for mesne profits before the suit, estimating the mesne profits for the purpose of order 7, rule 2 as rs. 50, a court-fee was paid on that amount. the suit was decreed by this court for possession and for the mesne profits claimed without specifying any amount. the applicant has made an application under order 20, rule 12, alleging that the amount of mesne profits due is rs. 4,899-7-0. the lower court states, that the decree of this court could only mean an ascertainment of the mesne profits in the suit itself under order 20, rule 12 and not in execution. no objection was taken by the parties to that view, but the lower court proceeded to hold that the plaintiff must pay court-fee on rs......
Judgment:
ORDER

1. Tins is an application in revision by a plaintiff. The circumstances, are that the plaintiff sued for possession and for mesne profits before the suit, estimating the mesne profits for the purpose of Order 7, Rule 2 as Rs. 50, A court-fee was paid on that amount. The suit was decreed by this Court for possession and for the mesne profits claimed without specifying any amount. The applicant has made an application under Order 20, Rule 12, alleging that the amount of mesne profits due is Rs. 4,899-7-0. The lower Court states, that the decree of this Court could only mean an ascertainment of the mesne profits in the suit itself under Order 20, Rule 12 and not in execution. No objection was taken by the parties to that view, but the lower Court proceeded to hold that the plaintiff must pay court-fee on Rs. 4,899-7-0, before the inquiry to ascertain the mesne profits prior to the suit could be held. No authority is shown for the proposition as to why court-foe should be paid before the mesne profits are ascertained and the plaintiff contends that it should not be paid before his, mesne profits have been ascertained. Learned Counsel for the respondent was not able to show any Order of the Civil Procedure Code, which would require that the court-fee should be paid on the mense profits before ascertainment on the application under Order 20, Rule 12, A contrary view has been taken in Seodhin Singh v. Narangi Lal (1926) 129 I.C. 662, where a learned Single Judge of the Patna High Court held in somewhat similar circumstances that the court-fee was not due for payment until the amount of mesne profits had been ascertained under Order 20, Rule 12. We consider that this view is correct. We accordingly allow this revision with costs, set aside the order of the lower Court of 15th November 1933, and direct that court-fee need not be paid until the Court of first instance has ascertained the amount of mesne profits due to plaintiff before suit.


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