Panchapakesa Ayyar, J.
1. This is a petition by one Sinnapappal alias Sinnakaliakkal for revising and setting aside the order of the District Judge of Coimbatore, dated 13th September, 1955, in an unnumbered appeal by her against mesne profits of Rs. 9,766 found as due by her in respect of certain property under a decree of this Court, directing her to pay ad valorem Court-fee of Rs. 712-7-0 instead of the Court-fee of one rupee she had paid, as on an appeal against an order under Section 47, Civil Procedure Code, taking refuge in the fact that the mesne profits were determined in E.P. No. 1165 of 1953, in O.S. No. 406 of 1942 by the District Munsif of Gobichettipalayam who was in this case the person who could hear and determine the Execution Petition as, well as hear and determine a petition under Order 20, Rule 12, Civil Procedure Code, for mesne profits.
2. The petitioner had contended before the learned District Judge that as a Bench of this Court had, in S.A. No. 429 of 1946, decided on nth April, 1949, observed that so far as the properties in S.A. No. 429 of 1946 were concerned, the plaintiffs would be entitled to mesne profits at a rate to be ascertained in execution proceedings from the date mentioned in the plaint, and as the District Munsif, Gobichettipalayam, had determined the mesne profits to be Rs. 9,766 in E.P. No. 1165 of 1953 in O.S. No. 406 of 1942, in consequence of this direction, the ruling of Beaumont, C.J., in Balaramacharya v. Chidambaragowda A.I.R. 1938 Bom. 320, would come into operation and entitled the petitioner to pay a Court-fee of only one rupee as in the case of an appeal against an order under Section 47, Civil Procedure Code.
3. The learned District Judge repelled this plea, and held that ad valorem Court-fee would be due, as the appeal was against the quantum of the mesne profits awarded and the proper forum for determining mesne profits was Order 20, Rule 12, Civil Procedure Code, and the determination of the mesne profits, in the E.P. must therefore, be held in substance to be one in a petition under Order 20, Rule 12, Civil Procedure Code, and the appeal must, therefore, by valued ad valorem at Rs. 712-7-0 instead of at one rupee. So he returned the appeal memo. to the petitioner and directed the deficit Court-fee to be paid before the appeal was numbered. Hence this Civil Revision Petition.
4. I have perused the records, and heard the learned Counsel for the petitioner, and the learned Additional Government Pleader contra. Mr. R. Ramamurthy Ayyar, for the petitioner, could not adduce any authority for holding that even now, after the amendment of Section 47, mesne profits could be determined in execution proceedings instead of in a petition under Order 20, Rule 12, Civil Procedure Code. Beaumont, C.J., himself in the decision relied upon by him, has held that it is only formerly, and before the amendment, that that was permissible, and that now mesne profits have to be ascertained in a petition under Order 20, Rule 12, Civil Procedure Code. To quote his words,
so that, the correct procedure under the present Code is for the Court to direct an enquiry as to the mesne profits and then pass a final decree for the amount found due on the enquiry.
Beaumont, G.J., went on to observe further, no doubt, that because of the High Court having directed the mesne profits to be ascertained in execution proceedings, and because the mesne profits were actually ascertained in execution proceedings, the person subjected to such mesne profits could take advantage of this error and pay Court-fee and appeal as if it is an appeal against an order under Section 47, Civil Procedure Code.
5. This decision of a single Judge of the Bombay High Court, however eminent, on that narrow point has not been followed by this Court in any decision brought to my notice. Indeed a Bench decision of this Court in Balarama Naidu v. Sangan Naidu (1931) 42 M.L.J. 184 : I.L.R. 45 Mad. 280 relied on by the learned Additional Government Pleader shows that even if the mesne profits are decided in an Execution Application in an Original Suit, ad valorem Court-fee should be charged under Article 1 of Schedule I of the Court-Fees Act, calculated on the amount of mesne profits in dispute in the appeal. This Bench decision of this Court will certainly take precedence over the decision of a single Judge of the Bombay High Court, however eminent. I may add that the learned Additional Government Pleader has also brought to my notice a recent decision of Ramaswami, J., in Varadarajulu Naidu v. Perumal Naidu (1957) 2 M.L.J. 48, reiterating the view taken by a Bench of this Court. I have also no doubt whatever that the view taken by the two decisions of this Court is the only view possible under the law as it stands. Where the law holds that mesne profits should be determined only in a petition under Order 20, Rule 12, Civil Procedure Code, and that it should be followed by a final decree, and that an appeal should be valued ad valorem on the amount of the mesne profits in dispute, I hold, with respect, that any observation in a judgment of this Court, that the mesne profits should be determined in execution, cannot enable the party filing the appeal against the quantum of the mesne profits, so determined in execution, to escape by paying a Court-fee of one rupee where a Court-fee of Rs. 712-7-0 is required, under the law, as ad valorem Court-fee on the disputed amount of Rs. 9,766, taking refuge in the argument that because of the observation in this Court's judgment, and the determination of the mesne profits in an Execution Petition; the appeal can be valued at one rupee, as if it were an appeal against an order under Section 47, Civil Procedure Code. No High Court has got the power to allow a person to pay one rupee as Court-fee, when the law (the Court-Fees Act) requires the payment of Rs. 712-7-0. That will be making a gift of Rs. 711-7-0 to a litigant at the expense of the State, which I submit no High Court or other Court can do. Mr. Ramamurthy Ayyar could not show how any observation in a High Court's judgment can overrule the Court-Fees Act, or Order 20, Rule 12, Civil Procedure Code, or other provision of law. The principle of the benefit of equal laws, and equality before the law, guaranteed by the Constitution, will also be affected by such discrimination in favour of any non-paupor litigant. It appears to me that, in modern times, we need not pay much heed to such formal matters as whether the mesne profits are determined in an execution petition, execution application or interlocutory application. We should look into the substance of the matter. Looking into substance, like that, it is clear that mesne profits should be determined nowadays only in a petition under Order 20, Rule 12, Civil Procedure Code and an appeal by the party affected should be valued ad valorem on the amount of mesne profits he disputes liability for. It is not the case here that an executing Court different from the Court which passed the decree, and having no jurisdiction to determine the mesne profits under Order 20, Rule 12, Civil Procedure Code, went into the matter in an execution petition, and determined the mesne profits without jurisdiction. It is admitted that the District Munsif, Gobichettipalayam, was both the Court which passed the decree and the Court which heard the Execution Petition and determined the mesne profits. So it is only a formal matter of determining the mesne profits in an execution petition instead of in an interlocutory application under Order 20, Rule 12, Civil Procedure Code.
6. It follows from all this that the learned District Judge was perfectly right in his order, and that the deficit Court-fee demanded by him as due ought to be paid to the last pie.
7. His order is confirmed, and this Civil Revision Petition is dismissed, but, in the, peculiar circumstances, without costs. Two months' time from to-day is granted to the petitioner for paying the deficit Court-fee. The appeal papers will be returned at once to the petitioner, to whom the lower Court had returned them for paying a deficit Court-fee. The petitioner will have to re-present the papers to the lower Court with the deficit Court-fee within the time fixed, if the appeal is to be numbered.