The main legal point established in the judgment is that the dismissal of a suit for non-payment of court fees should be carefully considered, especially when the plaintiff has already paid the full fee into court.

Krishnan, J.

1. These civil miscellaneous second appeals arise from proceedings in Original Suit No. 93 of 1901 on the file of the District Munsifs Court, Mannargudi. To understand the circumstances in which they arise, and the contentions of the parties in them, it is necessary to state the fasts at some length. Original Suit No. 93 of 1901 was for partition and delivery of plaintiffs share in certain immoveable properties with past and future mesne profits. A decree was passed directing that plaintiff do recover 63/96ths share in the plaint properties, with costs and past and future mesne profits, the amount of which was left to be determined in execution. There was an appeal and a second appeal but, except that the plaintiffs share was varied to 175/288, the decree of the first Court was confirmed. In 1910, after the new Code of Civil Procedure had come into force, plaintiff filed Execution Petition No. 228 of 1910 for the appointment of a Commissioner under Order XXVI, Rule 13, and for the passing of a final decree after dividing the properties and ascertaining the mesne profits Accordingly, a Commissioner was appointed, but, as his report was objected to, the Court held an enquiry itself and passed a judgment deciding the objections raised. As to the mesne profits it stated that a fresh calculation would be made in the light of its remarks and that plaintiff would be entitled to the sum so found due; it did not itself fix the actual amount. It also stated that, there would be a final decree drawn up on the petitioner paying the additional Court-fee, if any, due in respect of mesne profits allowed, within 15 days." This judgment was dated 22nd Marsh 1911, but no Court fee was paid by the plaintiff within the 15 days as directed. Nevertheless, we find a final decree was drawn up, which is Exhibit C 2 in the ease. It bears the date of the judgment but it seems to have been actually drawn up only in July 1911. The material part of it says, this Court doth order and direst that the petitioner do pay additional Court-fee, namely, Rs. 227-8.0 on or before the 6th day of April 1911 and get possession of his share of the properties hereunder described as fixed by the Commissioner in their report hereto attached, and this Court doth further order and decree that the 1st defendant do pay petitioner Rs. 4,441.2 3 for mesne profits and also Rs. 376-12-0 for costs." In September 1911 plaintiff applied, by Exhibit G., for execution of this decree proposing that the Court might take the money due for Court-fee from the amount realised from the defendant. The Court rejected it saying, "the Court-fee should be paid before taking out execution." He again applied in October 1911, Exhibit H, paying the Court-fee on the past profits only, and contending that he was not bound to pay on the future profits. This was also dismissed, the Court holding that he was bound by the decree. He applied again for execution by Exhibit J. paying the whole Court-fee and, by Exhibit K., for extension of time to pay that fee. These were registered as Execution Petition No. 666 of 1911 and Execution Appeal No. 618 of 1911. Both were dismissed; the Court saying on the former, "as Execution Appeal No. 618 of 1916 is dismissed, suit in respect of mesne profits is dismissed. Fresh application for delivery to be put in." There was an appeal to the Subordinate Judge against these orders as well as one against the final decree. He reduced the mesne profits but granted time for payment of Court fee and reserved the order on Execution Petition No. 666 of 1911 and remanded that petition for fresh disposal. In second appeal the High Court, the judgment of which is reported as Nathersa Rowther v. Mahomed Rowther 28 Ind. Cas. 890, held that there was no legal and valid dismissal of the suit for mesne profits but the Appellate Court had no power to extend time and was wrong in redusing the mesne profits. The learned Judges restored the original decree as to the amount o