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1905 DIGILAW 5 (ALL)

Nepal Rai v. Debi Prashad

1905-01-07

STANLEY

body1905
JUDGMENT : STANLEY, J. This matter comes before the Court on an objection raised by the plaintiffs-appellants to the report of the office in regard to an alleged insufficiency of the court-fee paid in the lower appellate Court. The suit was one for redemption of a mortgage of the 3rd of November, 1890, on payment of a sum of Rs. 499-15-0, the principal money expressed to be secured by the mortgage. The plaintiffs succeeded and obtained a decree for redemption, but upon payment of a sum of Rs. 1,155-14-0. The Plaintiffs considering that this amount exceeded the amount properly payable under the security by a sum of Rs. 288-11-0, preferred an appeal to the lower appellate court and valued their appeal at the sum of Rs. 288-11-0, the sum in dispute, and paid the proper court-fee on an appeal of that value, On appeal to this Court the office reported that the court-fee paid in the lower appellate Court was insufficient, inasmuch as under section 7(ix) of the Court-Fees Act in a suit for redemption of a mortgage, the court-fee is estimated according to the principal money expressed to be secured by the instrument of mortgage. The objection of the office was based upon a ruling of my predecessor SIR JOHN EDGE, in the case of Parbhu Narayana v. Sita Ram,[1891] I.L.R., 13 All., 94, and having regard to that decision was properly made. The objection which has been filed to the report is that in the case of an appeal in a redemption suit the court-fee payable is not to be calculated upon the principal money expressed to be secured by the instrument of mortgage when the appeal is only concerned with a definite portion of the sum declared by the Court below to be payable in respect of the mortgage. The contention is that the amount or value of the subject matter in dispute in the appeal is an ascertained sum, viz., Rs. 288-11-0 and that where the amount is so ascertained, the court-fee payable is an act valorem fee. 2. The contention is that the amount or value of the subject matter in dispute in the appeal is an ascertained sum, viz., Rs. 288-11-0 and that where the amount is so ascertained, the court-fee payable is an act valorem fee. 2. The question is one of some difficulty but having given it the best thought that I can, I have come to the conclusion that the “view expressed by my learned” predecessor is open to doubt, and that a contrary view which was expressed by my brother BURKITT in a later unreported case of Lala Rup Kishore v. Maya Ram,S.A. No. 1225 of 1893, is correct. The facts of that case (S.A. No. 1225) were so far as I can see in substance identical with those of the present case. My brother BURKITT held in that case that the case decided by EDGE, C.J., to which I have referred, was not in point. As to this, I must confess that I am unable to distinguish the two cases. He held in that case that the court-fee was payable only on the amount at issue in the appeal. 3. It appears to me upon a perusal of section 7 of the Court-Fees Act and Schedule 1 to that Act, that in a case such as the one before me, the court-fee is to be calculated on the value of the subject matter in dispute only. Section 7, sub-section (9), provides that in suits against a mortgagee for the recovery of the mortgaged property the court-fee is to be valued according to the principal money expressed to be secured by the instrument of mortgage. This section is confined to a suit apparently, and not to an appeal. In Schedule I to the Act we find that in the case of a plaint or memorandum of appeal not otherwise provided for in the Act, except those mentioned in section 3, an ad valorem fee is payable at the rate mentioned in that Schedule. In this Schedule memorandum of appeal is specifically mentioned, while in section 7 of the Act a memorandum of appeal is not mentioned. In this Schedule memorandum of appeal is specifically mentioned, while in section 7 of the Act a memorandum of appeal is not mentioned. Therefore I take it that if in the case of an appeal the value of the subject-matter of the appeal can be determined as it has been in this case, the appellant is only bound to pay a court-fee on the amount ascertained to be the value of the subject matter of the appeal. For these short reasons it appears to me that the view expressed by my brother BURKITT, in the case decided by him to which I have referred, is correct, and therefore I allow the objection raised before the Court and declare that the court-fee paid in the lower appellate Court is sufficient.