Perianan Chetty vs Nagappa Mudaliar

This is an appeal from an order of the District Judge reversing the order of the Mumsif allowing an application for an extension of time to pay

extra fee before execution as directed in a decree, and allowing execution.

The original suit was for possession and rent of premises and stamp for the value of rent up to plaint amount only was paid. In the course of the

proceedings, possession of the premises was given to the plaintiff and a decree was passed ultimately for the rent up to the time the premises were

delivered, a fixed sum and ascertained costs, and at the end of the decree the words following were added - ""And this Court doth further order

and decree that plaintiff do pay Court fee for Rs. 4-14-0 on the subsequent rent awarded to him after plaint within 9th September 1904.

This fee the plaintiff did not pay within the time named. When, therefore, he sought execution of the decree, it was objected that he had not paid

the Court fee as ordered. Thereupon he applied for an extension of time to pay the fee, and in the Munsif''s Court time was given him and he paid

the fee. On appeal the District Judge held that there was no power to extend the time, and he reversed the order of the Munsif and dismissed the

plaintiff''s application.

The real question, is whether the direction regarding the payment of the Court fee set forth in the concluding part of the decree forms any part of

the decree so as to necessitate the amendment of the decree before the time limited can be extended.

We are of opinion that the words in question do not form any part of the decree, and no amendment of the decree is necessary to enable the

Court to extend the time.

Apparently it was assumed that the latter part of Section 11 of the Court Fees Act applied and, therefore, a time was named within which the

extra Court fee should be paid, but this is clearly a mistake. If any part of that section applies, it is the first part of it, and the intention of that part of

the section is not that a time should be'' fixed for the payment of the extra Court fee, but that execution should be stayed until the extra Court fee

payable is paid. The latter part of the decree is, in our opinion, mere surplusage, and the Court had power to permit execution of the decree on

payment of the extra fee as intended by Section 11 of the Court Fees Act.

The clause in question does not affect the respondent, and the decree does not make execution of it against the respondent conditional upon the

payment of the extra Court fee within the time named by the plaintiff.

We, therefore, allow the appeal, set aside the order of the District Judge, and restore that of the Munsif with costs throughout in this and in the

lower appellate Court.