1. These civil miscellaneous second appeals arise from proceedings in Original Suit No. 93 of 1901 on the file of the District Munsif's Court, Mannargudi. To understand the circumstances in which they arise, and the contentions of the parties in them, it is necessary to state the fasts at some length. Original Suit No. 93 of 1901 was for partition and delivery of plaintiff's share in certain immoveable properties with past and future mesne profits. A decree was passed directing that plaintiff do recover 63/96ths share in the plaint properties, with costs and past and future mesne profits, the amount of which was left to be determined in execution. There was an appeal and a second appeal but, except that the plaintiff's share was varied to 175/288, the decree of the first Court was confirmed. In 1910, after the new Code of Civil Procedure had come into force, plaintiff filed Execution Petition No. 228 of 1910 for the appointment of a Commissioner under Order XXVI, Rule 13, and for the passing of a final decree after dividing the properties and ascertaining the mesne profits Accordingly, a Commissioner was appointed, but, as his report was objected to, the Court held an enquiry itself and passed a judgment deciding the objections raised. As to the mesne profits it stated that a fresh calculation would be made in the light of its remarks and that plaintiff would be entitled to the sum so found due; it did not itself fix the actual amount. It also stated that, there would be a final decree drawn up on the petitioner paying the additional Court-fee, if any, due in respect of mesne profits allowed, within 15 days.' This judgment was dated 22nd Marsh 1911, but no Court fee was paid by the plaintiff within the 15 days as directed. Nevertheless, we find a final decree was drawn up, which is Exhibit C 2 in the ease. It bears the date of the judgment but it seems to have been actually drawn up only in July 1911. The material part of it says, this Court doth order and direst that the petitioner do pay additional Court-fee, namely, Rs. 227-8.0 on or before the 6th day of April 1911 and get possession of his share of the properties hereunder described as fixed by the Commissioner in their report hereto attached, and this Court doth further order and decree that the 1st defendant do pay petitioner Rs. 4,441.2 3 for mesne profits and also Rs. 376-12-0 for costs.' In September 1911 plaintiff applied, by Exhibit G., for execution of this decree proposing that the Court might take the money due for Court-fee from the amount realised from the defendant. The Court rejected it saying, 'the Court-fee should be paid before taking out execution.' He again applied in October 1911, Exhibit H, paying the Court-fee on the past profits only, and contending that he was not bound to pay on the future profits. This was also dismissed, the Court holding that he was bound by the decree. He applied again for execution by Exhibit J. paying the whole Court-fee and, by Exhibit K., for extension of time to pay that fee. These were registered as Execution Petition No. 666 of 1911 and Execution Appeal No. 618 of 1911. Both were dismissed; the Court saying on the former, 'as Execution Appeal No. 618 of 1916 is dismissed, suit in respect of mesne profits is dismissed. Fresh application for delivery to be put in.' There was an appeal to the Subordinate Judge against these orders as well as one against the final decree. He reduced the mesne profits but granted time for payment of Court fee and reserved the order on Execution Petition No. 666 of 1911 and remanded that petition for fresh disposal. In second appeal the High Court, the judgment of which is reported as Nathersa Rowther v. Mahomed Rowther 28 Ind. Cas. 890, held that there was no legal and valid dismissal of the suit for mesne profits but the Appellate Court had no power to extend time and was wrong in redusing the mesne profits. The learned Judges restored the original decree as to the amount of profits but, at the same time, set aside the order of the Subordinate Judge on Execution Petition No. 666 of 1911, which had the effect of restoring the Munsif's order on it, though they had held that his reason was clearly bad, they also granted time for payment of the Court-fee on the amount the Subordinate Judge had disallowed and they had allowed. It is difficult to see why Execution Petition No. 666 of 1.911 was not ordered to be re-tried on the view expressed by their Lordships, and it is not clear under what power they purported to extend time themselves. However, it is not open to the parties now to dispute the correctness of those orders. Their Lordships had also remarked that the defendants would be entitled to move the District Munsif in a proper way to dismiss the suit for profits, and that plaintiff might move for review of the order fixing time and ask for its enlargement.
2. Parties have taken advantage of these remarks and have made the suggested applications. Plaintiff had already applied by Execution Petition No. 72 of 1915 for delivery of possession and had got delivery of all except Item No. 11. Plaintiff filed three petitions. In Miscellaneous Appeal No. 28 of 19)5 he asked for review of the order on Execution Appeal No. 618 of 1911 and for excusing delay in payment of Court-fee. In Miscellaneous Appeal No. 29 of 1915 he formally prayed that the Court fee already paid by him may be accepted; in Execution Petition No. 242 of 1915 he asked for delivery of Item No. 11. Defendants also filed three petitions, Miscellaneous Appeal No. 100 of 1915 asking that the whole suit might be dismissed for non-payment of Court-fee in time; Miscellaneous Appeal So. 136 of 1915 for re delivery of the proper, ties delivered under Execution Petition No. 72 of 1915, and Miscellaneous Appeal No. 147 of 1915 objecting to the delivery of Item No. 11. The lower Court dismissed the suit so far as it was for future mesue profits but refused to dismiss the rest of it. They also dismissed the application for review, but ordered delivery of Item No. 11. Thus, Miscellaneous Appeals Nos. 28, 29, 136 and 147 of 1915 were dismissed in toto; Miscellaneous Appeal No. 100 of 1915 was allowed and Execution Petition No. 242 of 1915 was allowed in full. It is against the order on these petitions that the civil miscellaneous second appeals before us have been filed
3. The main question for our consideration is, whether the suit was liable to be dismissed, and, if so, to what extent. Mr. K. Srinivasa Aiyangar for the defendants has contended that the present case fell under the 2nd paragraph of Section 1 of the Court Fees Act and as, admittedly, the additional fee was not paid in time, the whole suit should fail. He argued that the word 'suit' in the last sentence meant the entire suit an that the rulings in Fulchand v. Bai Ichha 6 Ind. Dec. 551 and in Kewal Kisen Singh v. Sookhari 1 C.W.N. 243 were not correct. But, before we consider this point, we must be satisfied that the present case properly falls under the 2nd paragraph; for it is clear that the dismissal of the suit is not a penalty for default under the 1st paragraph. The 1st paragraph deals with a case where the profits are settled by the decree and the penalty under it for non-payment of the additional Court-fee is, that the decree should not be executed till it is paid; under that paragraph the Court has no power to fix any time for payment, any order to that effect being mere surplusage. See Perianan Chetty v. Bagappa Mudaliar 30 M. 32 : 16 M.L.J. 548 : 2 M.L.T. 23, The 2nd paragraph deals only with a case where mesne profits are ascertained in execution of the decree, the two paragraphs being mutually exclusive. It will be seen from the statement of the facts in thin case that, though the 1st decree directed the mesne profits to be ascertained in execution, they were actually ascertained only by the final decree, Exhibit C 2. Proceedings taken for the purpose of passing final decrees in partition suits have often been held to be proceedings in the suit and not in execution. The first decree in this case was only an interim decree. It seems to me that the word decree in Section 11 should be taken to refer, in cases like the present, to the final decree, for that is the decree in the suit, the interim decree being in the nature of an order in suit. If I am right in this view, the present case will fall under the 1st paragraph of Section 11 and not under the 2nd and the provision in Exhibit C-2 fixing the 6th of April 1911 as the last day for the payment of the additional Court-fee should be ignored.
4. Plaintiff has not incurred the penalty of the dismissal of his suit by non-payment in time, he simply cannot execute his decree till he pays the full fee. As he has already paid that fee into Court, there does not seem to be any valid objection now, under the Court Fees Act, to his executing his decree in full including the claim for future profits.
5. There is another difficulty pointed out by the plaintiff's Vakil in applying the 2nd Clause of Section 11. Even if we consider this to be a case where the profits were ascertained in execution, taking Exhibit C-2 as an order in execution, there can be no doubt that, as contended by him, the word as 'ascertained' implies that the exact sum of money representing the profits has been fixed. It is not sufficient for the application of the section to show that a method had been indicated for the purpose of calculating those profits. In the absence of clear words to that effect in the section, I do not think the burden should be laid on the party of making a correct calculation and paying the correct Court fee at the risk of having a suit dismissed if ha makes a mistake. If the Court proposes to act under Clause (2) it should ascertain the amount of profits in money and state the additional Court-fee payable and fix a reasonable time for payment of it. In the present case the judgment of the District Munsif of the 22nd March 1911 did not ascertain the amount of profits bat only ordered a calculation to be made for it in the light of the observations in it. It was the judgment that contained the order giving 15 days' time to plaintiffs to pay the additional fee. As it did not fix the amount of profits or the Court-fee payable, the order could not be treated as a proper one giving time under Clause (2) of Section 11. In fact, it is doubtful if the Court intended to pass an order under Section 11 at all, as the payment within 15 days was merely made a condition for drawing up a final decree. No doubt, in Exhibit C-2 the amount of profits and the Court-fee are both stated. Can we treat the order in it to pay the Court-fee before the 6th day of April 1911 as a proper order under Clause (2) Section 11 P It is pointed out that Exhibit C-2 was actually drawn up only in July 1911. The payment of the Court-fee by 6th April 1911, a date which had already expired, was thus an impossibility and, for that reason, the order cannot be treated as a proper one under the Section. I must, therefore, hold that it is not shown that a proper order giving time was passed under Section 11, Clause (2) and, on this ground also, the application for dismissing the suit must be disallowed. If this view is correct, the Court should now pass a proper order under the 2nd clause, but it is not necessary to do so as the additional fee has, as stated above, been already paid.
6. It was also urged that the final decree should be looked upon as a conditional decree and as the conditional decree was not complied with, it could no longer be executed. As already pointed out, the fixing of the 6th April 1911 as the last date for payment of the additional fee was ultra vires and should be ignored. It may also be pointed out that the decree as drawn up is not, in its terms, a conditional decree at all. If, however, the payment of the additional fee is taken as a condition for execution, that condition has been complied with.
7. It was next urged that the course of the proceedings in this case showed that the parties understood the order fixing time in Exhibit C-2 to be one under Section 11, Clause 2, and that the High Court's judgment itself proceeded on that footing and that, therefore, plaintiff was precluded from urging that there was no order under that clause. There has, no doubt, been considerable confusion in this case as it seems to have been assumed that there was an order under Clause (2). But no order having the force of res judicator on the question has been pointed out to us. The order passed by the Court on the first execution application, Exhibit G., would seem to show that the Court then considered the order to pay the additional Court fee as one under Clause (11 of Section 11. If the order of the District Munsif in Execution Petition No. 686 of 1911 saying that the suit in respect of mesne profits was dismissed had become final, plaintiff might have been concluded by it so far as the mesne profits were concerned, but the High Court held that there was no legal order for dismissal. The fact that the dismissal of that execution petition was not expressly set aside by the High Court cannot prevent us from holding that his suit for mesne profits cannot be dismissed. The Question what effect the dismissal of Execution Petition No. 666 of 1911 will have on any future application for execution for mesne profits does not arise for decision now, as we have no execution petition for such profits before us for disposal.
8. I would, therefore, bold that Original Suit No. 63 of 1901 should not have been dismissed at all, not even to the extent of the claim for future mesne profits, Miscellaneous Appeal No. 100 of 1915 thus fails in toto and Miscellaneous Appeal No. 136 of 1915 also fails. No special argument was addressed to us regarding the delivery of item No. 11 and so Miscellaneous Appeal No. 147 of 1915 must also fail, plaintiff's application Miscellaneous Appeal No. 28 of 1915 for review of the order on Execution Appeal No. 618 of 1911 and for exuding delay was rightly dismissed and has now become unnecessary, Miscellaneous Appeal No. 29 of 1915 must be formally allowed as it asks that Court-fee already paid may be accepted. Execution Petition No. 242 of 1915 was rightly allowed by the lower Courts.
9. In the result, Civil Miscellaneous Second Appeals Nos. 100, 101, 103 and 104 of 1916 must be dismissed with costs. Civil Miscellaneous Second Appeals Nos. 115 and 116 of 1916 must be allowed with costs here and in the Courts below. Civil Miscellaneous Second Appeal No. 117 of 1916 must be dismissed with costs.
10. I entirely agree. I have only to add that I think that Courts should be very careful to avoid passing orders which are either impracticable or impossible for parties to comply with. If the District Munsif (Mr. Gopalan Nair) had not passed an order in Execution Petition No. 228 of 1910 to pay additional Court-fees upon a sum, which had not at that time been ascertained in rupees, annas and pies, and by a date which had already expired by the time the order was embodied in the form of a decree, this litigation might have been avoided, the parties would have been saved much unnecessary expense, and the time of other Courts would not have been taken up in disentangling the confusion which has resulted from his order.