Kuppuswami Ayyar, J.
1. The appellant was the decree-holder in O.S. No. 309 of 1930 on the file of the District Munsiff's Court of Valangiman at Kumbakonam. He had obtained a decree for past and future profits on the 7th December, 1933. He filed a petition to execute the decree on the 24th February, 1934, without paying the court-fee payable on the relief claimed in respect of the future profits; but he had included in it the claim in respect of the past profits also. It was returned on the 28th February, 1934, for complying with certain defects and also for payment of the court-fee. The defects were complied with but the court-fee was not paid. The appellant's contention was that no court-fee was payable. The petition 'was therefore posted to be heard in Court on 16th April, 1934. The vakil happened to be absent and the petition was dismissed for default on the 27th April, 1934. Another execution petition was filed on the 26th April, 1937, for the very same reliefs which were prayed for in the previous application but without payment of court-fees in respect of the claim for future profits. That application also was defective and was returned. The defects were complied with and the petition was posted to the 23rd June, 1937, for being heard on the question whether any court-fee was payable in respect of the claim for mesne profits or not. The Court pronounced an order on the 9th July, 1937, that court-fee was payable and gave the appellant time till the 20th July, 1937, for payment of the same. The court-fee was not paid and the petition was dismissed on 20th July, 1937. The execution petition out of which the present appeal arises was filed on the 20th July, 1940. The judgment-debtors contended that the petition was barred by limitation and that the orders on the two prior applications would not furnish any starting point of limitation.
2. The first Court held that they were applications made in accordance with law and the orders dismissing those applications would afford a fresh starting point of limitation and that the petition was in time. The lower appellate Court on an appeal filed by the judgment-debtors found that the two prior petitions were not in accordance with law as the requisite court-fee was not paid and therefore the orders passed on them cannot furnish any fresh starting point of limitation to the decree-holder. He accordingly dismissed the petition. Hence this appeal.
3. The learned Subordinate Judge relies upon a decision of the Judicial Commissioner of Sind reported in Lakshmichand v. Gokuldas : AIR1929Cal33 . It is no doubt a case directly in point, but I do not think he was justified in following that decision when decisions of this Court and of the Bombay High Court have held to the contrary. It is not the respondents' contention that the petitions were not in accordance with law on any other ground than that court-fee payable in respect of the portion of the claim for future mesne profits had not been paid. All that Section 11 of the Court-Fees Act states is:
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.
4. Alagirisami Naidu v. Venkatachalapathi Iyer (1907) 17 M.L.J. 566 : I.L.R. Mad. 77 held that a similar provision in a decree as regards the payment of a sum of money before execution could be allowed, cannot be said to be a condition precedent to the filing of the application and that an execution petition filed for a relief which could not be granted till the money was paid was a proper application in accordance with law even though the condition had not been fulfilled. The decree in that suit ordered.
that the plaintiff do recover the sum of... against the defendants I, 2 and 3 and the hypothecated property.
5. and it further ordered, ' that the plaintiff is not entitled to execute the decree till the fifth defendant's hypothecation is discharged by him.' A petition to execute the decree passed against the defendants 1, 2 and 3 was filed before the fifth defendant's hypothecation was discharged by him. It was dismissed. A subsequent petition was filed and it was urged that that petition was not barred by limitation by reason of the filing of the prior petition. It was contended that the prior application was not one in accordance with law because the fifth defendant's hypothecation deed had not been discharged and the decree against defendants 1, 2 and 3 could not be executed till payment of the same as per the terms of the decree. Their Lordships following the decision in Syed Hussain Sahib Rowther v. Rajagopala Mudaliar I.L.R.(1906) Mad. 28 held that it was only a condition precedent to the execution of the decree and not for the filing of a petition to execute the decree and it was therefore one in accordance with law. In Syed Hussain Sahib Rowther v. Rajagopala Mudaliar I.L.R.(1906) Mad. 28 also it was observed that if a decree could be executed only on the fulfilment of a condition and that was not fulfilled at the time when the execution petition was filed, it did not mean that the petition filed without fulfilment of the conditions was not one in accordance with law.
6. The case reported in Ramaswami Ayyan v. Seshayyangar I.L.R.(1883) Mad. 181 is a stronger case. There the execution petition was stamped with an one anna stamp instead of with an eight annas stamp. Their Lordships held that the insufficiently stamped application was one in accordance with law and saved limitation. Here the complaint is that in the two prior applications the court-fee should have been paid in respect of the claim for mesne profits and that if it should be considered to be a court-fee payable on the petition the non-payment of it will not make it one not in accordance with law as per the decision in Ramaswami Ayyan v. Seshayyangar I.L.R.(1883) Mad. 181. The learned Subordinate Judge before whom this was quoted distinguished it on the ground that the facts of the case were not fully reported and that it was not known whether the decree-holder did not pay the deficient court-fee after filing the execution petition. The facts of the case are stated in the report and I am not able to see why the learned Judge should have thought that the deficient court-fee might have been paid subsequent to the filing of the execution petition. If it had been paid no such question could have arisen, for it is open to the party to pay the court-fee later on on a date to be fixed by the Court. As a matter of fact these two petitions were posted before the Court for hearing arguments on the question whether court-fee was payable or not. The Bombay High Court also held with regard to a similar condition precedent to the execution of the decree that payment was a condition precedent to the granting of the relief but not to the making of the application. (Vide Nathubhai Kasandas v. Pranjivan Lalchand I.L.R.(1909) 34 Bom. 189)
7. I do not think in the face of these decisions the learned Subordinate Judge was justified in relying upon the decision of the Assistant Judicial Commissioner in Lakshmichand v. Gokuldas A.I.R. 1937 Sind 108 and finding that the petitions were not in accordance with law.
8. It is urged for the respondent that these two petitions were unnumbered and therefore not admitted and consequently must be considered by reason of the rejection of those applications to be petitions not in accordance with law. For this reliance is placed on the observations in Sathappa Chettiar v. Chockalingam Chettiar (1940) M.W.N. 69. It is true Mr. Justice Varadachariar refers to the fact that the petition was unnumbered, but that is only an incidental reference. The finding in that case was that in the execution petition in question some of the requirements of Order 21, Rules 10 to 14 had not been complied with and therefore the petition was not one in accordance with law. The order of rejection was construed as being an order passed under Order 21, Rule 17(2), on the ground that the petition was not one in accordance with law as the requirements of Order 21, Rules 10 to 14 were not complied with. It is significant that Mr. Justice Varadachariar pointed out in that case that the endorsement that sale papers had not been filed was incorrect as the records indicated that they had been filed. He also indicated that the other defects which resulted in the dismissal of the petition were defects connected with the requirements of Order 21, Rules 10 to 14. This decision has to be considered with reference to the facts of that case and cannot be taken to, mean that in all cases where an execution petition is dismissed without being numbered it should be taken to be a decision that the petition was not one in accordance with law. There His Lordship had to construe the effect of an order of dismissal of an execution petition on an attachment before judgment and the Court had to find whether the petition was one in accordance with law as it is only a dismissal for default of a petition which is in accordance with law that would have the effect of terminating the attachment.
9. The earned Counsel for the respondents refers to an unreported judgment in C.M.A. No. 90 of 1941 in support of the position that an unregistered application cannot be said to be an application in accordance with law. There their Lordships had to consider whether an order on a petition which was returned for carrying out certain amedments but which was not re-presented in time and was re-presented long after with a petition fo,r excusing the delay would be a final order on a petition filed in accordance with law which would furnish a fresh starting point of limitation for a petition which was filed along with the original petition when it was re-presented and they held that it did not furnish a fresh starting point of limitation. There it was not the non-numbering nor the non-admission that was the ground for holding that it was not one in accordance with law. It is the final order on the petition that will give the starting point of limitation. There was no final order on the previous application because there was only an order returning the petition for carrying out certain amendments. The petition was not re-presented in time. It is true it was re-presented later with a petition to excuse the delay. But that petition was dismissed. Therefore the petition was not one that could be considered to be before the Court. It is true that there was an order rejecting the petition on the ground that the petition to excuse the delay was disallowed. But then that order meant that the Court refused to look into the matter or act on it because it was not properly before the Court. The order rejecting the petition was not an order on the petition but was an order refusing to look into the petition. I therefore do not think that the decision in that case has any application to the facts of this case.
10. In the result, the order of the lower Court is set aside and the petition is remanded to the first Court for being proceeded with in accordance with law as it is in time and is not barred by limitation. The respondents will pay the appellant's costs both here and in the lower appellate Court. Leave refused.