Govinda Menon, J.
1. In the final decree passed in A.S. No. 50 of 1942 by this Court Clause 2 is in the following terms: 'That the petitioners do recover from the estate of the first respondent (first defendant) the sum of Rs. 18,961-13-1 on account of mesne profits with interest thereon at 6 per cent, per annum from 3rd May, 1941, till date of payment of the said amount.' Clause 6 of the decree states that each party do bear his own costs in the lower Court. In the execution proceedings of that decree, the decree-holder claimed a sum of Rs. 1,117-7-0 being the courtfee stamp payable on Rs. 18,961-13-1 as costs due to him in execution. The learned District Judge found that the decree-holder was not entitled to that amount because the decree definitely stated that the decree-holder shall be entitled only to the specific sum and that each party do bear his own costs. In such circumstances the learned District Judge disallowed the sum of Rs. 1,117-7-0 as claimed. The question is whether he is right. The third paragraph of Section 11 of the Court Fees Act states that:
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.
It is admitted that the decree in question which was passed in appeal by this Court was in pursuance to a direction contained in a preliminary decree for mesne profits and therefore, at the time the decree in A. S. No. 50 of 1942 is being executed the decree-holder has to pay the court-fee on the amount which he claimed as mesne profits decreed in his favour. There is no dispute whatever that he has not paid the court-fee costs at the time he applied for the final decree or when he instituted the suit. Such being the case, in order that the decree-holder might be entitled to realise the amount of mesne profits decreed, he should, as a condition precedent, or as a pre-requisite pay the court-fee.
2. The appellant's contention is based upon the paragraph 3 of Section 11 of the Court-Fees Act as well as a decision of this Court reported in Lakshmanan Chettiar v. Chidambaram Chettiar : AIR1933Mad787 , where Sundaram Chettiar and Walsh, JJ., have held that in view of the express provision in Section 11 of the Court-Fees Act which casts the duty on the executing Court to collect the deficit court-fee when it finds that execution is sought for the recovery of an amount over and above what was claimed in the plaint, no direction for the payment of the additional court-fee for the excess sum decreed need be given at all in the final decree, and any such direction, if given in the final decree, should be deemed to be a mere surplusage. It further held that the executing Court, which directs the payment of the additional courtlee under Section 11 of the Court-Fees Act, is also competent to determine whether that amount should be borne by the decree-holder himself or can be recovered by him from the judgment-debtors who are liable to pay the amount on which the extra court-fee was paid. On the facts of that case what happened was that a final decree in a suit for dissolution of a partnership and for accounts provided that
on payment of the additional court-fee the plaintiff do recover the excess amount decreed : AIR1933Mad787 .
This Court held that there was no express or implied direction in the decree that the plaintiff alone should bear the costs of the additional court-fee without any right to recover the sum from the defendants.
3. The learned advocate for the respondent contends that since both the original as well as the appellate Courts stated that each party do bear his own costs it should be deemed as if the Courts contemplated that the court-fee which the decree-holder has to pay in order that he might realise the fruits of his decree should also be borne by him and that the judgment-debtor is not bound to bear any portion of it. Mr. E. Venkatesam relies upon a judgment of this Court in Ramalinga Sethupathi v. Andiappan : AIR1931Mad717 , where Reilly and Anantakrishna Aiyar, JJ., have construed the scope of the various provisions of Section 11 of the Court-Fees Act. Reading the decree that is sought to be executed, it seems to us that at the time either the trial Court or the lower appellate Court passed the decree, the Courts did not contemplate, when they stated that each party do bear his own costs, that the future amount of court-fee which the decree-holder had to pay should be borne by the decree-holder himself. It is seen that the amount of costs which the decree-holder had incurred was a sum of Rs. 134-4-0 whereas the counter-petitioners had incurred a sum of Rs. 285-0-0. Neither of these amounts can be stated to cover any portion of the court-fee. We are of the opinion that in the circumstances of the case it should be deemed as if the Court left the question regarding the liability for the court-fee amount absolutely without any decision. Therefore the words, that each party should bear his own costs should not be understood as if the future court-fees to be paid by the decree-holder should be borne by the decree-holder himself. We do not find the learned District Judge giving any reason for disallowing the execution costs except stating that the decree is clear on the point. We find ourselves unable to agree with the learned District Judge that the decree is either clear or explicit. In our opinion it is open to the executing Court to find out as to who is liable for the amount of costs and court-fee which the decree-holder has to pay for realising the amount of mesne profits decreed. There is no reason why in the particular case, the decree-holder should lose the costs to be incurred by him by way of paying the additional court-fees when the defendants who are bound to pay the same have necessitated him to resort to claim in a suit. Such being the case it seems to us that the amount of Rs. 1,117-7-0 should also have been allowed by the executing Court.
4. The appeal is therefore allowed and the decree-holder is entitled to get the sum of Rs. 1,117-7-0 also from the respondents. No costs here in this appeal.