James, J.On 22nd December 1925, a Full Bench of this Court in Ram Golam Sahu and Others Vs. Chintaman Singh, decided that where the amount of mesne profits accruing pendente lite was left to be ascertained in the course of execution of the decree, no court-fee was payable on the claim until the amount actually due had been ascertained. Following this decision, the Taxing Judge decided on 14th July 1926 that ad valorem court-fee should not be levied on appeals to this Court from decisions determining the amount of mesne profits. His decision was reported as Sheodhin Singh v. Norangi Lal Ram Marwad (1926) 129 IC 662.

2. On 10th March 1932, the question of whether ad valorem court-fee was payable on such appeals came before a Division Bench of this Court in Kedar Nath Goenka Vs. Chandra Mauleshwar Prasad Singh, , when it was decided that ad valorem court-fee was payable on such a memorandum of appeal.

3. On a question arising between, the Stamp Reporter and an appellant after this decision, as to whether ad valorem court-fee was payable or not, the matter was referred to me as Taxing Judge, whose decision, of 18th November 1932, in Dhanukdhari Prashad Pandey and Others Vs. Ramadhikari Missir, was that ad valorem court-fee was payable on the memorandum of appeal.

4. In the present case, the Stamp Reporter had accepted the appeal is sufficiently stamped, before the decision of the Division Bench in Kedar Nath Goenka Vs. Chandra Mauleshwar Prasad Singh, but after the decision of that case he reopened the question and called upon the appellant to pay ad valorem court-fee on the value of his appeal. The case has been referred to me by the Taxing Officer u/s 5, Court-fees Act, for determination of the question of whether ad valorem court-fee shall be required in such cases, where appeals are still pending before this Court, though at the time of their presentation they were accepted by the Stamp Reporter as sufficiently stamped with a court-fee of Rs. 4, and duly admitted and registered.

5. Mr. B.P. Sinha on behalf of the appellant argues that a distinction should be drawn between this case and that of Dhanukdhari Prashad Pandey and Others Vs. Ramadhikari Missir, wherein the Taxing Judge, accepting the view expressed by the Division Bench, decided that ad valorem court-fee was payable on appeals from decisions determining the amount of mesne profits. In that case the appeal arose out of a suit for recovery of mesne profits, whereas in the present case the suit was for recovery of possession of land, with no claim for antecedent mesne profits, but with a claim for mesne profits pendente lite.

6. In Dhanukdhari Prashad Pandey and Others Vs. Ramadhikari Missir, it was held that ad valorem court-fee was payable on the amount for which the appellant sought to avoid liability, or on the amount by which he sought to enhance the value of his decree, on the principle that the case was governed by Article 1, Schedule 1, Court-fees Act, which prescribes that a memorandum of appeal must bear a court-fee stamp calculated on the value of the subject- matter in dispute in the appeal.

7. The rule applies to all appeals from decisions determining the amount of mesne profits, whether the profits may have accrued before suit, or after the date of the institution of the suit; and no distinction can properly be drawn between this case and that of Dhanukdhari Prashad Pandey and Others Vs. Ramadhikari Missir, on any such ground.

8. On the question of whether the rule that ad valorem court-fee is to be regarded as payable in the High Court on a memorandum of appeal of this nature is to be treated as affecting appeals admitted before the decision of the Division Bench in Kedar Nath Goenka Vs. Chandra Mauleshwar Prasad Singh, of 10th March 1932, or the decision of the Taxing Judge in Dhanukdhari Prashad Pandey and Others Vs. Ramadhikari Missir, of the following 18th November, Mr. B.P. Sinha argues that when the Stamp Reporter has once accepted an appeal as properly stamped and when it has been admitted and registered, the Stamp Reporter should be treated as functus officio; and he should not be regarded as entitled to reopen the question of the sufficiency of the court-fee. He also argues that since there Is no provision in the Court-fees Act for refund of court-fee which might have been paid in the opposite circumstances, it would not be fair to exact additional court-fee because during the pendency of the appeal, the practice has been changed by a decision of this Court.

9. It is suggested by the learned Government Pleader that the question of the sufficiency of the stamp on the memorandum of appeal must always be regarded as open until the appeal is finally heard and disposed of, in view of the provisions of the first part of Section 12, Court-fees Act, which directs that every question relating to valuation for the purpose of determining the amount of any fee chargeable on a memorandum of appeal shall be decided by the Court in which such memorandum is filed; and it is suggested that at the final hearing of the appeal it is open to the respondent to object that the memorandum of appeal has not been properly stamped.

10. This view is certainly correct as applying to Courts subordinate to the High Court and as applying to the High Court when considering the question of the sufficiency of the stamp in Court below under the second part of the section; but it must at least be regarded as doubtful whether the first part of Section 12, Court-fees Act, can be held to empower the Bench hearing the appeal to reject a memorandum as insufficiently stamped, in view of the remarks of Sir Dawson-Miller in Krishna Mohan Sinha Vs. Raghunandan Pandey, , when he expressed the opinion that the power of the High Court to decide the amount of the fee payable on a memorandum of appeal presented to the High Court has been delegated to the Taxing Officer and the Taxing Judge.

11. However that may be, under Rule 19, Ch. 7, of the Rules of the Patna High Court,the Stamp Reporter when he finds that a document which ought to bear a stamp under the Court-fees Act has been through mistake or inadvertence received in the Court without being properly stamped, is required to report the fact to the pleader who presented the document, who is obliged to note within three weeks whether he accepts or disputes the accuracy of the report. There is no doubt that under this rule the Stamp Reporter would be required to take action if he found that a memorandum of appeal which was insufficiently stamped had been accepted by mistake or inadvertence as sufficiently stamped and that it cannot be said that when the appeal is once admitted and registered, the functions of the Stamp Reporter are necessarily at an end.

12. Mr. B.P. Sinha points out that this rule applies only where an insufficiently stamped document has been accepted by mistake or inadvertence; and he contends that it cannot be applied to a case like that now before me, in which the Stamp Reporter acting correctly in accordance with the rule then prevailing accepted the memorandum of appeal as sufficiently stamped. But the rule does imply that the Stamp Reporter is not completely functus officio when an appeal has once been registered; and although it may be said that it is only where the document was received by mistake or inadvertence that the rule can be applied whereby partys pleader is not permitted to question the amended report unless he does so within three weeks, it must be held that the Stamp Reporter has power to re-open the question of whether a document is sufficiently stamped, where the matter has not already been decided by the Taxing Officer, so long as the appeal may remain pending.

13. The question remains of whether it is proper to treat appellants, whose memoranda of appeal may have been duly admitted and registered, where the matter of what may be the court-fee payable has not been left open, but has been decided in a manner which appears to be final, as liable to be called upon to pay additional court-fee during the pendency of the appeal, owing to a change in the view of the law taken in this Court after the appeal has been admitted. The learned Government Pleader, adopting the grounds set out by the Taxing Officer of this Court, argues that the appeal should be treated as having been admitted by mistake, and that Rule 19, Ch. 7, of the High Court Rules should be held to apply.

14. As the Taxing Officer has pointed out, decisions of the Courts do not make the law or reverse it; they merely interpret it; and the law, when the Stamp Reporter accepted this memorandum of appeal as sufficiently stamped, was the same as is now, so that if he now corrects his former mistaken report he is not really giving retrospective effect to a decision of the Taxing Judge.

15. The learned advocate for the appellant accepting this view as technically correct, argues at the same time that whatever may be the formal or technical view of the matter, the view that the law has always been in accordance with the latest decision on any particular point is essentially mere convention or legal fiction, since any matter which has already been finally determined so as to be res judicata is not reopened merely because a different view of the law may be taken in some subsequent case. He argues that it would be straining the language of the rule to suggest that the Stamp Reporter acted by mistake or inadvertence when he admitted the plaint in accordance with the rule then prevailing, since if he had acted otherwise at that time, he would have been acting without authority and would have done wrong.

16. Whatever may be the incidental consequences of holding that the Stamp. Reporter is not completely functus officio in the matter of these reports until the case is finally decided, I consider that this is the view which should be adopted. Mr. Sinha suggests that if the circumstances were the opposite of what they are, he would have no remedy; but the question may be considered when it arises. In appeals from orders determining the value of mesne profits which are still pending for decision in this Court, the Stamp Reporter should require the memoranda to be stamped in accordance with the rule laid clown in Dhanukdhari Prashad Pandey and Others Vs. Ramadhikari Missir, .