JUDGMENT : Stanley, J. This appeal has been laid before a Bench of three Judges by reason of a divergence of opinion to be found in the reported cases and the matter which is the subject of this appeal. The question for determination is as to the proper order to be passed under the following circumstances. The suit was brought by the plaintiffs to recover a moiety of a debt secured by a mortgage of the 16th of July, 1890, by sale of the mortgaged property. The plaintiffs offered to redeem two prior mortgages which were then subsisting. The Court of first instance decreed the plaintiff's claim and directed payment in respect of the prior mortgage of a sum of Rs. 8,290. From this degree, the defendants appealed. The lower appellate Court on hearing the appeal dismissed the suit on the ground that it was barred by section 43 of the Code of Civil Procedure. A second appeal was preferred from this decree and in the course of the proceedings it was ascertained that an insufficient Court fee had been paid by the appellants in the lower appellate Court. It appears that the fee was calculated only on the amount secured by the mortgage of the 16th of July, 1890, the amount due on foot of the earlier mortgages not having been taken into consideration. The appellants in the lower appellate Court, respondents to this appeal, were ordered to pay the deficiency in the Court-fee but have neglected or refused to do so. The question for the determination of the Court is what order, under the circumstances, should be passed upon this appeal. The lower appellate Court did not determine the issues which were knit between the parties, but decided the appeal simply on the ground that the suit was barred by the provisions of section 43 of the Code of Civil Procedure. The question for the determination of the Court is what order, under the circumstances, should be passed upon this appeal. The lower appellate Court did not determine the issues which were knit between the parties, but decided the appeal simply on the ground that the suit was barred by the provisions of section 43 of the Code of Civil Procedure. It is contended on behalf of the appellants that the proper order for the Court to pass under these circumstances is to dismiss the appeal of the defendants-appellants in the lower appellate Court and restore the decree of the Court of first instance, On the other side it is contended, that the proper course is to determine the appeal to this Court and if the Court adopt the view which the ‘appellants have presented vis., that the suit ought not to have been dismissed under section 43, to remand the case to the lower appellate’ Court for determination. Now in the case of Madan Lal v. Jaikishan Das, [1904] 1 A.L.J.R., 392, it was held by a Bench of this Court that where a memorandum of appeal was insufficiently stamped but was admitted through inadvertence, and the appeal decreed, upon the attention of the High Court being called to the insufficiency and upon the respondent failing to make good the deficiency within a prescribed time, the proper order to pass is to discharge the decree of the lower appellate Court and to restore that of the Court of the first instance. This does not appear to have been the practice which previously obtained in the Court. That practice is embodied in a judgment of one of us, Narain Singh v. Chaturbhuj Singh, [1898] I.L.R., 20 All., 362. This does not appear to have been the practice which previously obtained in the Court. That practice is embodied in a judgment of one of us, Narain Singh v. Chaturbhuj Singh, [1898] I.L.R., 20 All., 362. The facts of that case seem to be on all fours with those of the present, There it was held that where it was discovered in second appeal, that the respondent, when appellant in the lower appellate Court, had not paid sufficient Court-fee on his memorandum of appeal to that court, and when up to the date of the hearing of the appeal in the High Court, though called upon to do so, had not make good the deficiency, the proper procedure was not to dismiss the respondent's appeal to the lower appellate Court, but to stay the issuing of the decree, in favour of the respondent, if such should be passed, until such time as the additional Court-fee due by him might be paid, In that case the learned” counsel for the appellant asked the Court to take action under the second clause of section 12 and the second clause of section 10, and dismiss the appeal to the appellate Court. This the Court refused to do and we think properly. The case before the Court does not appear to be provided for by the Court-Fees Act, and the reasons assigned in the judgment in Narain Singh v. Chaturbhuj Singh, [1898] I.L.R., 20 All., 362, for the order passed therein commend themselves to us. It is unnecessary for to recapitulate the reasons which are given in that judgment. 2. Upon the merits the decision of the Court below based upon section 43, Civil Procedure Code, is not supported by the learned Vakil who represents the respondents. 3. We therefore allow this appeal, set aside the decree of the lower appellate Court and inasmuch as the material issues in the appeal have not been determined and the appeal was decided on a preliminary point, we remand the case under the provisions of section 562 with directions that it be re-instated in its original number in the file of pending appeals and be determined according to law. 4. On the re-hearing of the appeal it will be open to the Court below, to deal with the question of the insufficiency in the Court-fee paid by the defendants-appellants in that Court. 4. On the re-hearing of the appeal it will be open to the Court below, to deal with the question of the insufficiency in the Court-fee paid by the defendants-appellants in that Court. The appellants will have the costs of this appeal. All other costs will abide the event.