Chandrasekhara Ayyar, J.
1. The first question raised in this appeal by the plaintiff is whether he is not entitled to recover from the defendants the court-fee that he had to pay on the amount of mesne profits ascertained as due to him and decreed in his favour by the final decree The objection to the claim which found favour with the Subordinate Judge is that the decree itself does not mention that the plaintiff is entitled to recover this Court-fee from the defendants and that so long as the decree is silent on the subject it should be deemed that there was no award of any such relief to the plaintiff. According to the Subordinate Judge, the remedy of the plaintiff would seem to lie in an amendment of the decree asking that provision should be made for payment by the defendants of the court-fee to be paid by the plaintiff as a condition precedent for recovering the amount of mesne profits ascertained and decreed.
2. The suit was one for partition and delivery of possession of the plaintiff's share. Apparently there was a preliminary decree in favour of the plaintiff directing partition and an enquiry as to mesne profits, Where a decree directs an enquiry into mesne profits and a final decree is passed in accordance with such an enquiry, 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.' There can be no doubt that, if the plaintiff had filed the suit for the recovery of this sum of money, paying the court-fee thereon, the defendants would be liable to make good the court-fee as and by way of costs. The final decree can only provide for payment of the court-fee by the plaintiff, who is the person who is entitled to recover the amount of mesne profits, but it is not to be expected that it 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.
3. As a matter of fact, the point is not bare of authority. It was considered in Parasuram Byas v. Atchutarama Rao : AIR1943Mad145 where it was held that the plaintiff was entitled to recover by way of execution the court-fee paid by him on the excess amount decreed to him in a suit for accounts. Mr. Viyyanna sought to distinguish that case from the present on the ground that there were no preliminary and final decrees as in that case, but only one decree under which there was the clause that the plaintiff could not execute the decree in his favour unless he paid the further court-fee I am not able to see how the existence of two decrees makes any difference. What is now being executed is the final decree which provides that the plaintiff could not recover in execution the amount of mesne profits without paying additional court-fee. But I do not think that the learned advocate is right in his supposition that there was only one decree in that suit. It was a suit for an account of the administration of an estate and in such a suit, there is almost invariably a preliminary decree directing accounts to be taken and a final decree awarding amounts to the parties on the basis of such accounts on enquiry. I hold that the plaintiff is entitled to recover from the defendants the court-fee paid by him on the amount of mesne profits awarded under the decree.
4. The second point raised by the appellant is that he is entitled in execution to vakil's fee, not merely on the Court fee and the costs of execution, but also on the entire sum awarded to him as mesne profits. Obviously the appellant is not right here. His execution petition makes allowance for the sum of Rs. 3,100 deposited by the defendants in Court and seeks the recovery only of the balance. Therefore, the amount involved in the execution petition is not the total sum, but what is sought to be recovered. The vakil's fee must be calculated on this basis and he is entitled to get pleader's fee only on Rs. 292-3-8.
5. The appeal is allowed to the extent indicated above. The respondents will pay the appellant's costs.
6. Leave to appeal is refused;.