Judgment :- 1. A short point regarding court-fee is raised here. The factual situation is this: The suit, from which this appeal by plaintiffs arises, is for recovery of possession of property with mesne profits. The suit was dismissed by the Munsiff, Trichur, before whom it was filed. Appeal filed from the Munsiff's judgment was dismissed by the District Judge, Trichur. This second appeal is from that decision. 2. In the appeal memorandum in second appeal plaintiffs have made valuation and paid court-fee in the same way as was done in the plaint. It is contended that as future mesne profits have been claimed in the plaint and that claim is continued in the appeal memorandum and as mesne profits from date of suit up-till the date of the second appeal have accrued due or have become antecedent profits by the time the appeal is filed plaintiffs have to pay in appeal court-fee on that amount also. The provisions of S.52 of the Court-fees and Suits Valuation Act, 10 of 1960, for short, the Act, are invoked to support it. 3. S.52 of the Act, so far as it is relevant for the present purpose reads: "The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal: ~~~~~~~~ ~~~~~~~~ Explanation (3)- In claims which include the award of interest subsequent to the institution of the suit, the interest accrued during the pendency of the suit till the date of decree shall be deemed to be part of the subject-matter of the appeal except where such interest is relinquished. ~~~~~~~~ ~~~~~~~~ According to the Section as appeal memorandum has to be treated in the same manner as a plaint for the purpose of calculation of court-fee. The argument is that since mesne profits up to the date of the filing of the appeal had accrued by the time the appeal was filed it has to be treated as a claim for money to that extent and court-fee has to be paid on that basis as it is part of the 'subject-matter of the appeal'. The argument is that since mesne profits up to the date of the filing of the appeal had accrued by the time the appeal was filed it has to be treated as a claim for money to that extent and court-fee has to be paid on that basis as it is part of the 'subject-matter of the appeal'. In other words a claim in a plaint for past mesne profits is a claim for money in a suit, court-fee has to be paid on it as on any other claim for money and with reference to the date of filing the appeal as the claim for mesne profits which accrued due before that and after the institution of suit is really past or antecedent mesne profits court-fee has to be paid on it if a claim for the same is made in the appeal memorandum. Similar arguments advanced in cases arising under the Travancore-Cochin Court-Fees Act found favour with the Travancore-Cochin High Court in Chacko Chacko v. Varghese Varghese 1955 KLT.168 and Ulahannan Kurien v. Uthuppu Varkey 1955 KLT. 377. 4. A claim for past mesne profits is a definite claim for money which has accrued due. It is true that the right to mesne profits from the date of suit up to the date of the appeal is no longer a right in future on the date of appeal and in that view it is as good as past mesne profits on the date of appeal but on that ground alone is the levy of court-fee on it justified? The answer has to be in the negative for reasons mentioned hereinafter. 5. It is Order XX R.12 of the Civ/1 Procedure Code which empowers a court to grant pendente lite mesne profits. The power to grant it is entirely in the discretion of the court. It is not a relief which the plaintiffs can claim as of right. If the court does not grant a decree for pendente lite mesne profits plaintiffs are not debarred from instituting a separate suit for those mesne profits. The claim made in the fresh suit for the same is as of right, its grant does not depend upon the discretionary power of the court and by the time the fresh suit is filed it becomes past mesne profits also. The claim made in the fresh suit for the same is as of right, its grant does not depend upon the discretionary power of the court and by the time the fresh suit is filed it becomes past mesne profits also. This distinction is emphasised, with great respect, rightly, by the Madras High Court in In re Kantheeswaram Ekanthalingaswami Koil AIR. 1937 Madras 46. 6. No court-fee is payable on reliefs to be granted in the discretion of courts. The Supreme Court held in State of Maharashtra v. Mishrilal Tarachand Lodha and others AIR. 1964 SC. 457 that claims not based on any asserted right but dependent on the decision of the disputed right and reliefs in regard to which were in the discretion of the Court did not come within the purview of the expression 'subject-matter in dispute in plaint or memo of appeal'. It follows that in the plaintiffs' appeal arising from a suit for recovery of possession of property with mesne profits the plaintiffs need not pay in appeal, court-fee on pendente lite mesne profits. But an appeal by a defendant in that suit stands on a different footing. If there is a decree against him for future mesne profits as he has to avoid that decree he has to pay court-fee oh the mesne profits from the date of suit up to the date of appeal. Ordinarily the same principles, which apply to pendente lite mesne profits in suits for recovery of possession of property, have to apply to pendente lite interest in suits for money also because the granting of that also is in the discretion of court. But Explanation (3) of S.52 of the Act shows that pendente lite interest has to be deemed as part of the subject matter of the appeal and so court-fee has to be paid on it. In State of Maharashtra v. Mishrilal Kantheeswaram Ekanthalingaswami Koil, AIR. 1937 Madras 46, where it was held that no court-fee need be paid on pendente lite interest, the case arose from Maharashtra where the Bombay Court-fees Act, 36 of 1959, applied and there was no provision there corresponding to Explanation (3) of S.52 of the Kerala Act. 7. In Mathai Ouseph v. Narayana Pillai 1966 KLT. 997, an appeal arising from a suit for money, it was held by this Court that court-fee had to be paid on pendente lite interest. 7. In Mathai Ouseph v. Narayana Pillai 1966 KLT. 997, an appeal arising from a suit for money, it was held by this Court that court-fee had to be paid on pendente lite interest. That was on the basis of Explanation.3 to S.52 of the Act. That decision has no application here because here the claim is for mesne profits and to that the Explanation has no application. 8. I respectfully disagree with the decisions of the Travancore-Cochin High Court in Chacko Chacko v. Varghese Varghese 1955 KLT. 168 and Ulahannan Kurien v. Uthuppu Varkey 1955 KLT. 377 that for purposes of payment of court-fee claim made in the appeal memorandum for mesne profits from date of suit to the date of institution of appeal has to be treated as a suit for past or antecedent mesne profits and that court-fee is payable on the same. I hold that in this appeal by plaintiffs pendente lite mesne profits are not to be included in the 'subject-matter of the appeal' occurring in S.52 of the Act and that court-fee is not payable on the same.