Rampini and Harington, JJ.
1. These are two appeals from orders passed by the District Judge of Nadia, affirming the orders of the Subordinate Judge of that District in two execution cases.
2. The facts are that the decree-holder appellant, having obtained decrees for the mesne profits accruing due both previous to the institution of the suits and after that date up to the date of recovery of possession, made applications for the ascertainment of these mesne profits. In one case he claimed Rs. 422-8 and in another Rs. 343-12. He paid Court-fees on these amounts. He subsequently claimed Rs. 31,000 and Rs. 27,000 as mesne profits in the two cases.
3. The Subordinate Judge awarded him Rs. 2,414-15-6 and Rs. 1,724-15-10 and on the 7th May 1902 ordered him to pay in the deficit Court-fees payable on these amounts within seven days' time. The decree-holder did not pay these fees within these seven days. The deficit Court-fees were subsequently paid into Court on the 26th May, but no application for their acceptance or order accepting them were made.
4. The District Judge dismissed the applications, holding that the Court-fees were not paid in time. This Court remanded the cases, directing that the Subordinate Judge should consider, whether he should accept the fees or not.
5. The Subordinate Judge has now refused to accept these fees and the District Judge has affirmed his order.
6. The decree-holder appeals. On his behalf it his been contended
(1) that the provisions of Section 11 of the Court fees Act of 1870, on which the Courts below rely, do not apply to these cases; and
(2) that the Subordinate Judge's predecessor actually accepted the fees, and it was not open to his successor to refuse to accept them.
7. The provisions of paragraph 2 of Section 11 of the Court-fees. Act would seem in point. They provide that 'where the amount of mesne profits is left to be ascertained in the course of the execution of the decree, if the profits so ascertained exceed the profits claimed, the further execution of the decree shall be stayed 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 so ascertained, is paid. If the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed.'
8. Now in these cases the mesne profits due both before and after the institution of the suits or applications were to be ascertained in execution. They were so ascertained, and exceeded the amounts, on which Court-fees had been paid. The Court ordered the deficit Court-fees to be paid within 7 days' time. They were not so paid and hence the Subordinate Judge would seem to be right in dismissing the suits or applications, as he has now done. This has already been held in Kewal Kishan Singh v. Sookhari (1896) I.L.R. 24 Calc. 173, But on behalf of the appellant it has been argued that para. (1890) I.L.R. 15 Bom. 416 of Section 11 of Act VII of 1870 only applies to a case in which a definite amount can be or has been claimed in the plaint and not to a case in which future mesne profits, the amount of which is indefinite, are claimed, and hence it is said no deficit Court-fees were payable on the sums claimed in these cases as future mesne profits. In support of this argument the case of Earn Krishna Bhikaji v. Bhimabai (1830) I.L.R. 15 Bom. 416 and the analogy of interest on which, when awarded by a Court, no additional Court-fees are payable, are relied on. It is true that in the case of Rom Krishnaji v. Bhimabai (1830) I.L.R. 15 Bom. 416 it appears to be laid down that Section 11 applies only to a claim for mesne profits for which an amount can be and has been claimed in the plaint and in respect of which some fee has been actually paid and not to a claim for future mesne profits. We doubt very much the correctness of this rule, but it is unnecessary for us to consider it, for the judgment of Chief Justice Sargent in the case above referred to Chedi Lal v. Kirath Chand (1880) I.L.R. 2 All. 682 goes on to point out that the Judges, who decided it, thought it probable that Section 11 would apply to future rents regarded as mesne profits, but that in that case the plaint asked for past, as well as future, mesne profits and an amount was claimed and fee paid in respect of the former. Chief Justice Sargent adds: '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.' Now the present cases are apparently exactly similar to Chedi Lal v. Kirath Chand (1880) I.L.R. 2 All. 682. The plaints asked for past as well as future mesne profits and an amount was claimed and fee paid in respect of the former. Hence on the rule laid down in Earn Krishna v. Bhimnbai (1830) I.L.R. 15 Bom. 416 the provisions of Section 11 are applicable in these cases.
9. There is no analogy we think between interest awarded under Section 209 of the Code of Civil Procedure and mesne profits claimed and awarded under Sections 211 and 212. Interest may be awarded under Section 209 as an inducement to prompt satisfaction of the decree and as a penalty for non-compliance with it, Such interest is no part of the claim or relief granted, as in the case of mesne profits.
10. We may add that no such plea as now taken was raised before this Court, when these cases previously came before it, and the cases were remanded for a decision on a particular point. But we think it undesirable to dismiss these appeals on this ground.
11. The second argument that the fees were accepted by the 1st Subordinate Judge and should not have been refused by his successor is met by the finding that there was in the present cases neither prayer nor order by the Court for extension of the time for paying in the deficit Court-fees. It is doubtful if the Subordinate Judge accepted the Court-fees. They were merely paid into Court and left unnoticed by him. Hence, as found by the Courts below, the Subordinate Judge never intended to extend the time for paying in the deficit fees, nor extended it.
12. The orders of the Lower Court, therefore, appear to be correct, and we dismiss these appeals with costs.