1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR W. P. NO.5446/2008 Raghunath A. Shende -Vs- Keshav D. Nagdevte and others. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Shri Agnihotri, Adv. for petitioner. Shri Puranik, Adv. for R-1. Coram: C. L. PANGARKAR, J. Dated : 15th April, 2009. This writ petition challenges the order dated 30/09/2005. The petitioner had filed an application under Order-20 Rule-12 of Civil Procedure Code for determination of mesne profits. After the suit filed by the petitioner/plaintiff was partly decreed in his favour. For determination of such mesne profits, he filed an application bearing M.J.C. No.2 of 1997. The learned Judge of the trial Court held an enquiry and found that the petitioner was entitled to Rs.21,000/- as mesne profits. He also directed that the petitioner should pay the court fees on the said amount within seven days, 2 failing which the application shall stand dismissed. Thereafter it appears that the court fees could not be paid within seven days from the date of the order. This application under order-20 Rule-12 of Civil Procedure Code came to be dismissed by formal order dated 13/10/2005. Thereafter the petitioner moved an application for extension of time that was rejected. Writ petition was preferred that was also rejected. L.P.A. was allowed to be withdrawn with liberty to the petitioner to file appropriate proceedings before the appropriate forum. None appears for the respondents, though served. I have heard the learned counsel for the petitioner. The learned counsel for the petitioner submits that since the petitioner had challenged the orders of rejection of extension of time, there has been a delay in preferring this writ petition against the order dated 30/09/2005. The reason as given by the petitioner appears to me to be just. The learned counsel for the petitioner submits that the order dated 30/09/2005 particularly paragraph-3 of the final order is patently wrong. He relied upon the provisions 3 contents in Sec.13 of the Bombay Court Fees Act. Sec.13 of the Bombay Court Fees Act read as follows - After having gone through Bombay Court Fees Act, it is apparent that after the Court delivers the judgment determining the mesne profits, the Court is required to grant at least 30 days time to the petitioner to pay the Court fees and it further contemplates that if the court fee is not paid within 30 days, the Court is bound to send the said decree for recovery of the court fees as arrears of land revenue to the Collector. The learned counsel for the petitioner further submits that Sec.13 contemplates that until the court fees is paid, the decree can not be executed. It is, therefore, obvious that the Court has no jurisdiction to dismiss the application for mesne profits after a judgment is passed by the same. It could not have, therefore, directed that upon failure to pay court fee, the application under Order-20 Rule-12 of Civil Procedure Code shall stand dismissed. The order is patently illegal, considering the provisions of Sec.13 of the Bombay Court Fees Act. In the circumstances, the order needs to be partly modified. The third paragraph of the 4 final order dated 30/09/2005 is quashed and set aside. Instead of it, it is directed that the petitioner should pay the court fees within 30 days and upon failure of the same, the Court shall send the decree to the Collector for recovery of the court fees as arrears of land revenue and it is further directed that the said decree shall not be executable until the Court Fee is paid or recovered. The writ petition is accordingly allowed. Rule made absolute. JUDGE gsk