JUDGMENT :

Knox, J.

On the 9th March, 1895, the appellants obtained a decree for possession of immoveable properly on redemption of a, mortgage and for mesne profits. The amount of mesne profits was left to be ascertained in execution. On the 31st July, 1895, the decree was upheld on appeal. On the 31st March, 1897, possession of the property was delivered to the appellants. On the 2nd November, 1897, the appellants applied that the amount of mesne profits might be ascertained. That amount was ascertained and declared on the 27th November, 1897. The appellants not having paid on their plaint a court-fee sufficient to cover the amount of mesne profits thus ascertained the decree for that amount could not be executed until the additional amount of court-fee had been paid to the proper officer, vide section II of the Court-Fees Act. This section directs that in a case like the present, “the further execution of the decree shall be stayed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits so ascertained, is paid.” On the 8th December, 1897, the Court filed the papers with an order declaring that the decree for the mesne profits would be capable of execution “Kabilijra” when the necessary court-fee has been paid. The section gives the Court the power to fix a time within which the additional fee must be paid, and provides that if the additional fee is not paid within the time fixed, the suit shall be dismissed. In the present case the Court fixed no time within which the additional fee was to be paid. In 1898, 1899 and 1902, the decree-holders took steps to realize the costs which had been awarded to them.

2. The application out of which this appeal arises was presented on the 19th September, 1902, and it asked for the realization of the amount of mesne profits which had been ascertained in 1897, Along with the application, the decree-holders paid in the additional court-fee required. The judgment-debtor objected that the decree had become time-barred. The Court of first instance overruled this objection, but on appeal the learned District Judge sustained it. The decree-holders come here in second appeal. In our opinion the appeal must succeed.

3. Section II of the Court-Fees Act provides for the stay of further execution until payment of the additional court-fees. No time having been fixed by the Court within which such additional court-fees had to be paid, the execution of the decree was merely in abeyance, and when the fees were paid in, there was, in our opinion, no bar to the execution being taken out for the mesne profits. It is unfortunate that the Court did not fix a time for payment of the additional fees and thus allowed these proceedings to be unduly protracted.

4. We allow the appeal and setting aside the order of the lower appellate Court, we remand the case to the Court of first instance with directions to re-admit the application for execution on its file and dispose of it in accordance with law.

5. Under the circumstances we direct that the parties bear their own costs incurred here and in the lower Court other costs will abide the event.