- (1.) THIS is a revision by the judgment-debtor against the order of the Second Civil Judge, Kanpur, rejecting his objection that the execution of the decree was barred by Section 11 of the Court-fees Act.
(2.) THE applicant was a tenant of premises known as "Jai Hind Cinema Building" at Kanpur and the contesting opposite parties were the landlords thereof. The landlords filed a number of suits against the tenant of which Suit No. 70 of 1958 was for ejectment, for recovery of arrears of rent and for mesne profits for use and occupation. The other suits were for recovery of arrears of rent, for mesne profits for use and occupation for certain periods and for recovery of insurance charges. The disputes in all the suits were settled by a compromise dated October 7, 1966 which was filed in Suit No. 70 of 1968 and all the suits were decreed in terms of this compromise. Under the compromise, the plaintiff decree-holder was awarded : (i) A decree for the ejectment of the judgment-debtor from the premises with a stipulation that the judgment-debtor will hand over possession by December 31, 1972; (ii) A decree for Rs. 83,473 for damages or compensation for use and occupation of the premises upto September 30, 1966, and for costs, the amount was payable in instalments. (iii) A decree for the payment of damages for use and occupation at the rate of Rs. 3,000 per month from October 1, 1966 till December 31, 1972. In case the judgment-debtor failed to deliver possession of the premises by December 31, 1972, the decree-holder was held entitled to recover damages for use and occupation at the rate of Rs. 500 per day till the date of actual delivery of possession. 2-A. Admittedly, all the amounts due upto December 31, 1972 have been paid by the judgment-debtors to the decree-holders. Since the judgment-debtors did not hand over possession by December 31, 1972, the decree-holders demanded possession on January 1, 1973, and on their refusal to deliver possession, the decree-holders filed an execution application for ejectment of the judgment-debtors from the premises and for damages at the rate of Rs. 500 per day from January 1, 1973 upto the date of the delivery of possession. The decree-holders tentatively paid court-fees on an amount of Rs. 7,500, the damages due for 15 days. The judgment-debtors raised a preliminary objection that, since court-fees had not been paid by the decree-holders on the decree for mesne profits, the execution of the decree was barred by the first part of Section 11 of the Court-fees Act. This objection has been rejected by the Civil Judge. Paragraph 2 of Section 11, in its application to Uttar Pradesh, was amended by U. P. Act No. XIX of 1938. Paragraph 1 in its original form is applicable not only in Uttar Pradesh but also in all other States. This Section as applicable to our State, reads thus:- "11. Procedure in suits for mesne profits or account when amount decreed exceeds amount claimed- In suits for mesne profits or for immovable property and mesne profits or for an account if the profits or amount decreed are or is in excess of the profits claimed or the amount at which the plaintiff valued the relief sought, 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. Where a decree directs an inquiry as to mesne profits which have accrued on the property during a period prior to the institution of the suit, if the profits ascertained on such inquiry exceed the profits claimed no final decree shall be passed till 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 claim for the excess shall be dismissed, unless the Court, for sufficient cause, extends the time for payment. 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 thereof."
(3.) IT is not disputed that the amount of damages for use and occupation decreed under the compromise decree is much larger than the amounts claimed in the various suits and that the difference in the court- fees payable on the amount decreed and the amounts claimed has not been paid by the plaintiff- decree-holders. The judgment-debtors' objection was that the decree was a decree for immovable property and mesne profits and that since the difference between the court-fees actually paid and the court-fees payable had not been paid, no part of the decree could be executed. The contention of the decree-holders, on the other hand, was that the first para of Section 11 only prohibited the execution of the decree for mesne profits and not the execution of the decree for ejectment. On the arguments addressed to me, the following three points arise for decision : (i) Whether this revision which involves the question of payment of court-fees is not maintainable at the instance of the judgment-debtors? (ii) Whether the decree in question is a decree for immovable property and for mesne profits? and (iii) Whether Section 11 of the Court-fees Act bars the execution of a decree for immovable property and mesne profits only in respect of the mesne profits or also in respect of the immovable property? ;