1. The question of court fee payable on the appeal memorandum in an unnumbered second appeal from the decree passed by the District Court in A. S. No. 452 of 1969 has come up before us on an order of reference by a Division Bench to which the question had been referred by order dated 26th September 1973. The order of reference to the Division Bench was made because the correctness of the observations of Narayana Pillai J., in the decision in Amma Brahmaniammah & Others v. Gopalan & another reported in 1973 KLT. 726 was doubted. That observation is extracted in the order of reference and runs as follows:

"But an appeal by a defendant in that suit stands on a different footing. If there is a decree against him for future mesne profits as he has to avoid that decree he has to pay court fee on the mesne profits from the date of suit up to the date of appeal."

2. The question that was considered by Narayana Pillai J., was whether in a plaintiff's appeal from the decree dismissing a suit, court fee must be paid in relation to the mesne profits that had accrued due from the date of suit up to the date of appeal. Relying on the decision of the Supreme Court in State of Maharashtr