ORDER :

R. Subramanian, J.

1. This revision raises an interesting question as to the Court fee payable in an appeal against an order determining the share of the income from the properties to be divided between the parties in a suit for partition.

2. The suit in O.S. No. 493 of 1993 was filed by one Palaniandi and the respondents 1 and 2 herein. Since Palaniandi died after the suit, his legal representatives were brought on record and arrayed as respondents 3 to 6 herein. A preliminary decree came to be passed by the Trial Court on 26.10.1998. An appeal was taken there from to this Court in A.S. No. 861 of 1998, which came to be disposed of on 22.09.2008. Thereafter, the plaintiffs in the suit filed an application in I.A. No. 172 of 2010 seeking determination of the income from the suit properties. The application came to be filed under Order 20 Rule 12 of C.P.C.

3. The learned Principal Sub-Ordinate Judge, Cuddalore by an order dated 12.01.2016 fixed the income from the suit properties, which resulted in a direction to the petitioner herein to pay a sum of Rs. 1,00,19,890/- with subsequent interest at 6% per annum from the date of the suit till date of realization. Aggrieved by this fixation, the petitioner, who is the sole defendant in the suit preferred an appeal in A.S. No. 30 of 2016 on the file of the Principal District Judge, Cuddalore. The appeal was valued under Section 37(2) of the Tamilnadu Court Fees and Suits Valuation Act and a fixed court fee of Rs. 750/- was paid. The respondents herein filed I.A. No. 260 of 2016 under Section 44 r/w 52 of the Tamilnadu Court Fees and Suits Valuation Act, directing the appellant to pay ad valorem court fee at the rate of 7.5% contending that an appeal against an order determining mesne profits ought to be valued under Section 44 of the Tamilnadu Court Fees and Suits Valuation Act and the Court fee payable is on the income ascertained by the Court. They would also rely upon the direction made in the order of the Trial Court requiring them to pay Court fee at 7.5% per annum.

4. This application was opposed by the petitioner herein contending that the order passed by the Trial court though on an application under Order 20 Rule 12 of C.P.C., is not an order ascertaining mesne profits. It is actually an order passed under Order 20 Rule 18 of C.P.C., where the court is empowered to determine the share of the income of the parties as per the preliminary decree. Therefore, according to the petitioner herein, the appeal is not against an order passed under Order 20 Rule 12 of C.P.C. as Order 20 Rule 12 could be invoked only in cases where there is a decree for possession against a person, who is found to be in illegal occupation of the property.

5. It is the further contention of the petitioner herein that Section 44 of the Tamilnadu Court Fees and Suit Valuation Act will apply only in cases where a decree for mesne profits granted by the Court as against person who is in illegal possession and not against the sharer in suit for partition. On the above contentions, the petitioner herein claim that the court fee that has been paid is just and proper. The learned Principal District Judge, who heard the application concluded that since the appeal is against an order determining mesne profits under Order 20 Rule 12, it is Section 44 of the Court fee Act that would apply and therefore, the appellant ought to have valued the appeal and paid ad valorem court fee at 7.5% of the share of the income that was determined by the Trial Court. It is the correctness of this order, which is questioned in this revision.

6. I have heard Mr. V. Raghavachari, learned counsel for the petitioner, Mr. N. Suresh, learned counsel for the contesting respondents. Since the matter involved in payment of Court fee, I had directed issuance of notice to the Additional Government Pleader (CS) and I have heard Mr. Y.T. Aravind Gosh, learned Additional Government Pleader (CS) also.

7. The application before the Trial Court namel