ORDER
M.N. Chandurkar, C.J.
1. This revision petition filed by the original decree-holder is directed against an order passed by the II Additional Subordinate Judge of Vellore, requiring the petitioner to pay Court-fees on the amount which he wants to withdraw in pursuance of the order of this Court by which a conditional stay of delivery of possession was granted. The petitioner, is the plaintiff, who had sued for recovery of possession of the suit property and a sum of Rs. 6,000 as damages for use and occupation. The suit was decreed and the defendant was directed to pay Rs. 3,000 towards the past mesne profits and an enquiry under Order 20, Rule 12, Code of Civil Procedure was directed for determination of the future mesne profits.
2. The defendant filed an appeal against this decree which is pending in this Court. During the pendency of the appeal, this Court directed that the rent should be paid in Court from time to time. Thus, a sum of Rs. 24,160 is now lying in Court deposit. It is this amount which the plaintiff-decree-holder wants to withdraw from the trial Court. The learned Subordinate Judge, however took the view that in view of the provisions of Section 44 of the Tamil Nadu Court-Fees and Suits Valuation of Act, 19, hereinafter referred to as the Court-Fees Act, Court-fee was required to be paid on mesne profits past and future and the petition for withdrawal should, therefore, be entertained only after the necessary Court-fee is paid. The amount of Court-fee was computed at Rs. 1,812.50. This order is challenged by the decree-holder in this revision petition.
3. It is stated by the learned Counsel for the decree-holder that he does not dispute the liability to pay the Court-fees by the decree-holder, if and when a decree for mesne profits is made by the trial Court after the enquiry into the mesne profits is completed. The learned Counsel however contends that the trial Court has no jurisdiction at the moment to demand Court-fee when the amount is being withdrawn in pursuance of the order of this Court.
4. The defendant, who has deposited the amount has no objection to the amount being paid to the decree-holder. As a question of revenue was involved, notice was issued to the Government Pleader.
5. Mr. T.N. Vallinayagam, on behalf of the State Government has invited my attention to Section 44(2) of the Court-Fees Act. He contends that unless Court-fee is paid no decree for mesne profits could be drawn and the plaintiff-decree-holder must pay now the amount of Court-fees payable in respect of the amount which he seeks to withdraw.
6. In my view, the provisions of Section 44(2) of the Court-fees Act have no application at the present stage. Section 44(2) reads as follows:
Where a decree directs an enquiry as to the mesne profits which have accrued on the property, whether prior or subsequent to the institution of the suit, no final decree shall be passed till the difference between the fee actually paid and the fees which would have been payable had the suit comprised the whole of the profits accrued due till the date of such decree is paid.
7. A bare reading of the above section will show that the only provision which is made in Section 44(2) is that, unless the difference between the Court-fee actually paid and the fees which would have been payable had the mesne profits ultimately found due would have been rightly claimed is paid, the Court will not draw a final decree. This position is not disputed on behalf of the plaintiff. The enquiry into the mesne profits is still going on. The total amount of mesne profits is still to be determined. It is only after the total amount payable to the decree-holder by way of mesne profits is determined, that the occasion for payment of Court-fees will arise. At present the plaintiff is seeking to withdraw the amount deposited in court in pursuance of the direction of this Court given as a part of the condition of the order staying the execution of the decree for possession. There is, therefore, no occasion for the drawing up of any decree as a pre-condition before the plaintiff withdraws the amount deposited as directed by this Court. If and when a decree for mesne profits is drawn, the amounts sought to be withdrawn will have to be given credit for and when the decree is to be drawn, the plaintiff will be required to pay Court-fee on the total amount of mesne profits determined by the Court and not merely on the difference between the mesne profits determined and the amount now withdrawn. Accordingly, there is no justification for the trial Court for withholding Rs. 24,160 on the ground that the plaintiff should first pay Court-fee of Rs. 1,812.60.
8. This revision petition is accordingly, allowed. The trial Court shall permit the plaintiff to withdraw the amount lying in deposit in pursuance of the order of this court. There will be no order as to costs.