(1.) The question whether the appellants in A.S. No. 37 of 1936 should have been asked to state the amount of future mesne profits claimed by them and to pay court-fee thereon has come up before me for decision in consequence of a difference between the Court-Fee Examiner and the learned District Judge of Kurnool.
(2.) A suit for partition and possession (O.S. No. 203 of 1928) which also included a prayer for the grant of future mesne profits, was instituted by the plaintiffs in the Court of the District Munsif at Kurnool. It was decided in their favour and a preliminary decree was passed on the 30 July, 1931; but the question of future mesne profits was ordered by the District Munsif to be left open. The property was partitioned and the partition was followed by a final decree. This was passed on the 15 January, 1932. After the plaintiffs had obtained possession in the execution of this decree, they applied to the Court on the 30 July, 1934, asking for an enquiry into the future mesne profits and for an order to direct the defendants to pay what was found to be due from them (E.P. No. 391 of 1932). This application which purported to be under Order 20, Rule 12, Civil Procedure Code, was opposed by the defendants mainly on the ground that there was no direction for an enquiry into the mesne profits either in the judgment or in the decree. This contention found favour with the District Munsif and the application was dismissed on the 13 March, 1936. An appeal was preferred by the plaintiffs against this order to the District Judge on which they affixed a court-fee of one rupee only. The Court-Fee Examiner objected to this as insufficient as according to him the order passed by the District Munsif on the 13 March, amounted to a decree, and since the relief claimed in the appeal was unascertainable, he contended that the plaintiffs should be ordered to estimate the amount at which they valued their relief and to pay an ad valorem court-fee on the figure stated by them. The learned District Judge was of opinion that since the plaintiffs were asking for future mesne profits only, they could not be required to estimate the relief, the value of which was unknown to them and the court-fee paid by them was sufficient. The correctness of this order has been questioned before me.
(3.) It might be mentioned here that the appeal from the order passed by the District Munsif on the 13 March, 1936, was accepted by the learned District Judge as he was of opinion that the words in the preliminary decree under which the determination of the future mesne profits was left open must be taken to mean that the matter "was left open to be agitated in a subsequent enquiry constituting a continuation of the suit".