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1912 DIGILAW 305 (ALL)

Moti Begam v. Har Prasad

1912-06-26

TUDBALL

body1912
Office Report 1. The suit out of which this appeal has arisen was brought by the plaintiff for recovery of Rs. 2,500 on account of principal and interest on foot of a mortgage, dated 4th May 1893, by enforcement of hypothecation lien, Mt. Moti Begam, one of the defendants, defended the suit on the allegation that the property sought to be sold was conveyed to her as security for her dower-debt under a prior bond executed by her deceased husband, Sayed Hasan, on 9th February 1892, which bond was subsequently renewed by the heirs of her deceased husband on 5th August 1910. The said defendant contended that the property could not be sold until payment of the money due to her on account of her dower-debt secured by the deed of mortgage which she put up as a shield. The suit was valued at Rs. 2,500, and a court-fee of Rs. 150 was paid thereon. At the trial of the suit the Court held that the plaintiff's mortgage was prior and decreed the plaintiff's suit. A decree was accordingly passed for sale of the mortgaged property under O. 34, R. 4. Mt. Moti Begam appealed to the lower appellate Court, setting up inter alia a plea of priority and genuineness of the mortgage held by her. The lower appellate Court modified the decree of the Court of first instance by extending the time for payment of the decretal amount, and in other respects the appeal was dismissed. 2. The appeal was valued at Rs. 2,500, and a court-fee of Rs. 150 was paid thereon. The proper valuation of the appeal was Rs. 2,519 inclusive of interest from date of suit to date fixed for payment of the decretal amount awarded in the decree appealed from, and a court-fee of Rupees 155 wag payable upon that valuation. Rs. 150 having been paid, there is therefore a deficiency of Rs. 5 to be made good by the defendant-appellant for the lower appellate Court. Mt. Moti Begam has preferred this second appeal and the relief sought by the appeal is that the Hon'ble Court will be pleased to allow the appeal and declare that the appellant has a prior charge for the amount of her dower-debt and the property can be sold only subject to her charge. 3. The appeal is valued at Rs. 2,500, and a fixed fee of Rs. 3. The appeal is valued at Rs. 2,500, and a fixed fee of Rs. 10 has been paid, apparently on the ground that a mere declaration is sought by this appeal. I think a court-fee of Rs. 10 paid in this Court is quite inadequate. The defendant-appellant seeks by this appeal to go behind the decrees of the Court below, decreeing the plaintiff's claim for sale of the mortgaged property and declining to accept the plea sat up by the defendant in the Court below and repeated in this Court in a somewhat different form. The suit was a suit for sale on a mortgage on the basis of which the Courts below have passed a decree in plaintiff's favour. The defendant comes to this Hon'ble Court in second appeal, and by making a prayer in the form of a declaration wants to get rid of those decrees. Assuming that the defendant-appellant does not state in distinct words that the decrees below should be set aside, one should see what will be the consequence, if the declaration prayed for, be granted. Leaving out the question that the appellant is avoiding the decree passed against her, it is evident that the property will be subjected to a double charge created by the mortgages held by the parties and out of sale proceeds the plaintiff may not get anything after meeting, the prior charge of the defendant. 4. I am quite certain that the appellant is seeking for a declaration with a consequential relief, and, as such, she must pay ad valorem court-fee of Rs. 175, on the amount of her mortgage, i.e., Rupees 3,000. Rs. 10 having been paid, there is therefore a deficiency of Rs. 165 due from defendant-appellant for this Court. Total deficiency due from defendant-appellant for this Court and lower appellate Court is Rs. 170. 5. The following objections to the report of the Stamp Reporter were raised by counsel for the appellant:—1. The object of the appeal is not to get rid of the decrees of the Courts below nor does the appellant seek: “by this appeal to go behind the decrees of the Courts below decreeing the plaintiffs claim for sale of the mortgaged property,” as remarked by the Stamp Reporter. The object of the appeal is not to get rid of the decrees of the Courts below nor does the appellant seek: “by this appeal to go behind the decrees of the Courts below decreeing the plaintiffs claim for sale of the mortgaged property,” as remarked by the Stamp Reporter. 2 The appellant is desirous that the decree for the sale of the property may be allowed to remain intact but it may be declared that her dower-debt is a prior charge. Almost a similar question arose in a case of Rup Chand v. Fateh Chand , (1911) 33 All 705 : 11 IC 977. and it was decided that a Court fee of Rs. 10 on the memorandum of appeal was sufficient. 3. Having regard to the above circumstances the Court-fee of Rs. 10 paid by the appellant on the memorandum of appeal is sufficient. 4. The Court-fee in the Court below was paid on the amount of the mortgage money under Section 7 of the Court Fees Act and was sufficient and the Stamp Reporter is not justified in demanding any Court fee on the amount of interest on the memorandum of appeal either in this Hon'ble Court or in the Court below. Reply of Stamp Reporter 6. In submitting the papers to you under Section 5 of the Court Fees Act, I beg to add that the ruling relied upon by the learned Counsel has no application at all to this case, and that according to the long standing practice of this Court ad valorem Court fee is always charged on pendent lite interest. I cite two cases, viz., Nepal Rai v. Debi Prasad, (1905) 27 All 447 and Baji Lal v. Gobardhan Singh, (1909) 31 All 265 : 1 IC 1000.. These are converse cases. In these cases the appellants sought to get rid of the liability imposed by the decrees appealed against, while in the present case the appellant is seeking to impose a further liability on the property in suit. In the second ground of appeal the appellant distinctly assails the concurrent findings of the Courts below that the right of the appellant under the deed was barred by time and extinguished for all purposes under the law. In the second ground of appeal the appellant distinctly assails the concurrent findings of the Courts below that the right of the appellant under the deed was barred by time and extinguished for all purposes under the law. The relief sought by the appeal may be read thus:—It may be declared that the appellant has a prior charge for the amount of her dower-debt and that the property can be sold only subject to her charge by reversing the concurrent findings of the Courts below, in so far as they affect her deed, on the ground set forth in the memorandum of appeal. 7. I most respectfully submit that a very substantial consequential relief is involved in the case and under Section 7, Clause (4)(c), read with Clause 1 of the Court Fees Act, the appellant must pay ad valorem Court-fee on the amount of her own deed amounting to Rs. 3,000. If the appeal prevails and the Hon'ble Court holds that the appellant has a prior charge and directs the property to be sold subject to her prior charge, the appellant may apply for sale of the property under O. 34, R. 12, and the Court acting under O. 34, R. 13, may first satisfy the prior charge out of the sale-proceeds and then give the balance to the plaintiff-respondent. If the law allows such a procedure, the appellant will get her mortgage money on payment of Rs. 10 without bringing a fresh suit. In any case I most humbly submit that it is manifestly a case in which the appellant is not only trying to get rid of the liability imposed upon her by the decree but to impose a further liability on the property, and as such the appellant must pay ad valorem Court-fee on the further charge thus imposed. Note by the Taxing Officer 8. I have heard the learned Counsel and am not convinced by his arguments. In the appeal to the District Judge, Saharanpur, full Court-fee was paid. In this appeal the whole of the decree is attacked by the second ground. I agree with the Stamp Reporter that the full Court-fee should be paid on this appeal, but Mr. I have heard the learned Counsel and am not convinced by his arguments. In the appeal to the District Judge, Saharanpur, full Court-fee was paid. In this appeal the whole of the decree is attacked by the second ground. I agree with the Stamp Reporter that the full Court-fee should be paid on this appeal, but Mr. A. Raoof maintains that he seeks merely a declaration and that the case is one of general importance in view of the Full Bench ruling, Ram Shanker Lal v. Ganesh Parsad, (1907) 29 All 385 (F.B.). At his request I submit the question for the decision of the Hon'ble Taxing Judge. The Stamp Reporter should quote the rulings on which he relies. JUDGMENT 9. The amendment has been made. Court-fee must be paid on the amount of the prior charge. I allow two days to make good the deficiency.