Venkataramana Rao, J.
1. This matter arises out of a reference made by the learned District Munsiff of Melur for a decision on the question whether a plaintiff is entitled to execute a decree awarding, without directing an enquiry, mesne profits since the date of the institution of the suit without payment of Court-fee. The suit was for recovery of certain immoveable property and mesne profits for a period prior to the date of the institution of the suit (13th November, 1926) and also subsequent thereto. The Court by its decree dated 23rd October, 1929, awarded Rs. 60 for profits prior to suit and also awarded profits from the date of suit until delivery of possession at the rate of Rs. 60 per annum. It was carried in appeal both to the District Court and the High Court and ultimately confirmed. The decree of the High Court is dated the 9th September, 1935. The present execution application out of which this reference arises was filed on the 21st November, 1935, praying for delivery of possession of the property and for realisation of Rs. 60 the past profits decreed and also of Rs. 540 the amount of mesne profits due and payable from 13th November, 1926, the date of plaint, to 21st November, 1935, the date of the execution application. The question is, can the relief so far as it relates to the sum of Rs. 540 be given to the plaintiff without payment of Court-fee? The relevant provision of law applicable to the case is Section 11 of the Court-fees Act as amended by the Madras Act V of 1922. It runs thus:
11. In suits for mesne profits or for immoveable property 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 enquiry exceed the profits claimed, no final decree shall be passed till the difference between the fee actually paid and the fee which would 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 be 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 .
2. As the decree was passed at the close of the trial without directing an inquiry as indicated by Order 20, Rule 12, Civil Procedure Code, Clauses 2 and 3 of Section 11 of the Court-Fees Act do not apply. Does Clause 1 apply? For the application of the said clause the following conditions must be fulfilled:
(a) The suit must be one for mesne profits or for immoveable property and mesne profits. No distinction, is drawn between mesne profits prior to and subsequent to the institution of the suit. A suit laying claim for mesne profits subsequent to suit solely or in addition to a claim for past profits or, for possession of property would be a suit within the meaning of this clause.
(b) There must be a decree awarding mesne profits, that is, a decree determining finally the amount of mesne profits payable so far as the Court passing the decree is concerned and capable of execution. The expression used is 'profits decreed'. It is general and would comprise profits accruing from date of suit.
(c) The profits decreed must be in excess of the profits claimed.
All these three conditions are fulfilled in the present case. The suit is for possession of immoveable property and mesne profits. There is a decree finally determining the amount of profits subsequent to the date of suit. No doubt the actual amount of mesne profits is hot determined, but the rate has been determined; the amount claimable at any particular point of time is only a question of calculation. That a decree of this nature is final and capable of execution has been held by Venkatasubba Rao and Madhavan Nair, JJ., in Alagappa Chettiar v. Alim Saheb (1925) 22 L.W. 347. The profits claimed in the suit are certainly in excess of the profits decreed. The profits claimed were Rs. 60 being the estimated amount of past profits. What was decreed was the said sum of Rs. 60 plus future profits at the rate of Rs. 60 per annum from date of suit till delivery of possession. Therefore on the plain language of Section 11(1), the plaintiff is bound to pay the Court-fee before the decree in respect of the future profits can be executed. But it is contended that it is not competent to a Court to pass a final decree for mesne profits without an enquiry and the only decree it can pass is a preliminary decree under Order 20, Rule 12, Civil Procedure Code and Section 11(1) contemplates cases only where past profits were claimed as it is only in respect thereof the amount can be claimed and Court-fee is payable having regard to Section 7 of Court-Fees Act and Order 7, Rule 2, Civil Procedure Code. Reliance was placed on a number of cases in support of this contention. Some of which we propose to deal with. Mr. Narasaraju lald emphasis on the observations of Venkatasubba Rao, Officiating Chief Justice as he then was, in In re Kantheeswaram Ekanathalingaswami Koil through its trustee Vedanayagam Pillai : (1936)71MLJ677 :
As regards future mesne profits, the Court has no such option but is bound in the first instance to pass a preliminary decree.
3. With due respect to the learned Judge, we are not able to appreciate the force of the expression 'is bound'. As he himself says, the Court is not bound to pass a decree for future mesne profits, the passing of the decree being in the discretion of the Court (page 682) but if it chooses to pass a decree, should it only be a preliminary decree? What the section says as that in regard to future profits the Court may direct an inquiry and in case an inquiry is directed, it shall pass a decree in accordance with the result, of that inquiry. One thing is plain; jurisdiction is conferred on the Court trying the suit to pass a decree finally determining the amount of profits payable subsequent to the institution of the suit. The determination of the said profits is an essential part of the decree in the suit and must be done by the Court which passed the decree and not by the Court which executes it. If this is the principle underlying the section, is there anything to preclude the Court from passing the decree without directing an enquiry if the parties agree or do not object? The section does not say that no final decree should be passed unless there had been a previous inquiry and the Court must pass a preliminary decree, whether an inquiry is necessary or not. In cases where an enquiry is unnecessary, it seems to us that it would be an idle formality to pass such a decree. As pointed out by Sulaiman, C.J., in A.P. Bagchi v. Mrs. F. Morgan : AIR1937All36 'a preliminary decree becomes necessary where the exact amount has to be ascertained after examination of fresh evidence'. In that case the learned Judge observed:
When the plaintiff made it clear that she confined her relief to-the recovery of the fixed rents which had been agreed upon between the parties, the amount was definitely ascertained and there was no occasion for framing a preliminary decree so that there may be another ascertainment of the amount due to the plaintiff.
The Court was not bound to pass a preliminary decree in the first instance. It is therefore perfectly competent to the Court, without directing an enquiry, to pass a decree finally determining the amount of profits payable subsequent to the institution of the suit if it is made out that it is not necessary to make such an enquiry and it cannot be said that such a decree is not final or is incapable of execution nor would it be in contravention of the provisions of Order 20, Rule 12, Civil Procedure Code.
4. We shall now proceed to deal with the other aspect of the contention that Section 11(1) deals only with a case of past profits. The case in Ramakrishna Bhikaji v. Bhima Bai I.L.R. (1890) 15 Bom. 416 was strongly, relied on in support of this contention. It was a suit for possession and for mesne profits from the date of the suit. The Court gave a decree for possession and directed that mesne profits should be determined in execution. After the mesne profits were ascertained, a question arose whether the decree-holder should pay court-fee before he could be allowed to proceed with the execution. It was held that no court-fee need be paid. We may at once state that the case would now be entirely covered by Clause 3 of Section 11 of the Court Fees Act as amended, so far as this Presidency is concerned. The learned Judges after referring to Chedi Lal v. Kirath Chand I.L.R.(1880) 2 All. 682 (F.B.), observed thus:
There the plaint asked for past as well as future mesne profits, and an amount was claimed and fee paid in respect of the former. If the mesne profits, past and future, be regarded in such a plaint as one entire claim for mesne profits, the language of Section 11 might perhaps apply.
Therefore, so far as the present case is concerned, it would directly come within the scope of the above observations. We may state that the above observations were followed with approval in two cases, namely, Dwarka Nath Biswas v. Devendranath Tagore I.L.R. (1906) 33 Cal. 1232 and Ijjatulla Bhuyan v. Chandra Mohan Banerjee I.L.R.(1907) 34 Cal. 954 (F.B.). A Full Bench of our High Court in Re Parameswara Pattar : AIR1930Mad833 has taken the view that a claim for possession of land and for mesne profits should be taken1 as one entire claim for computation of the court-fee. It purported to follow the decision of the Calcutta High Court in Kishori Lal Roy v. Sharut Chander Mozumdar I.L.R.(1882) 8 Cal. 593 (F.B.) where at p. 596 Garth, C. J., made the following observations:
The Court could only give him the mesne profits from the time when he was entitled to possession and whether he was so entitled as from the date of suit, or from a time antecedent to the date of suit, the nature of his claim must be the same.
There can therefore be no question that where a claim is for possession of immoveable property and past profits or where a claim is for possession of immoveable property and for past profits and future profits, and future mesne profits are decreed, a court-fee will be leviable on such profits under Section 11 of the Court Fees Act. A case of our High Court reported in Maiden v. Janakiramayya I.L.R.(1898) 21 Mad. 371 which purported to follow Ramakrishna Bhikaji v. Bhima Bai I.L.R.(1890) 15 Bom. 416 was also relied on. That was a suit for possession of immoveable property, past profits and future profits. There was a decree for possession and for mesne profits coupled with a direction that mesne profits should be paid from the date of suit till delivery of possession, the amount thereof to be determined in execution. There was an appeal against the said decree and a question arose whether court-fee should he paid in respect of the direction as regards the mesne profits subsequent to the institution of the suit. The learned Judges held that no court-fee was payable. The decision was based on quite an intelligible principle because no profits had yet been ascertained and no court-fee is payable in respect of the future mesne profits until they are ascertained. Vide In re Kantheeswaram Ekanathalingaswami Koil through its Trustee Vedanayagam Pillai : (1936)71MLJ677 . But it is hardly an authority for the position that when the mesne profits have been ascertained the plaintiff need not pay the court-fee before he can execute the decree in respect thereof. It seems to us that where there is a claim for mesne profits in a suit, whether past or future, the plain language of Section 11(1) would apply to the same if a decree is passed in respect of the future mesne profits. It is no doubt true that a claim for mesne profits subsequent to the date of suit is upon a cause of action which was not existing on the date of the suit, but nevertheless the Legislature has made an exception to the general rule by permitting a claim in respect thereof in order to avoid multiplicity of suits. As the claim in respect of future mesne profits will be upon a cause of action arising subsequent to the institution of a suit, whether a plaintiff will be entitled to get a decree in respect thereof, and if so, for any and what amount are all matters which are dependent on the decision in the suit. There is no provision made in the Court Fees Act for the computation of such a claim. But from that it does not follow that no court-fee is leviable when the claim has been determined and when the mesne profits have been ascertained. The contention which seeks to negative liability for payment of the court-fee is based on the words 'fee actually paid'. In the case where the suit is for possession of immoveable property and past profits, no difficulty arises because a fee would have been actually paid. In a case where a claim is made only for future mesne profits, no fee could have been actually paid because no fee is leviable; in such cases the fee actually paid would be nil. Therefore the 'difference' within the meaning of Section 11(1) would be the entire fee payable on the amount actually decreed. However, it is unnecessary to express any final opinion as in this case the claim was for past and future profits and a fee has been actually paid.
5. Our answer to the reference is that the plaintiff is bound to pay the Court-fee on Rs. 540 claimed by him before he can execute the decree in the suit. We acknowledge our indebtedness both to Mr. Srinivasa Aiyangar, who appeared for the Government Pleader, and to Mr. Narasaraju who appeared as amicus curiae for the assistance they have rendered to us.