JUDGMENT Misra and Madeley, JJ. - This is a court-fee report by the office. 2. The facts are that there were three co-sharers in a house, Suraj Bali, Nanku and Manni Lal. All these three have died. Babu Lal claims to be a son and heir of Suraj Bali. Mst. Pana, the widow of Nanku, is his heir. Mst. Sukhrani and Puttua, the widow and son of Manni Lal, are his heirs. Mst. Pana filed a suit for partition claiming that she was entitled to 2/3rd of the house and Sukhrani and Puttua to the other 1/3rd. Her contention was that Babu Lal was not the son of Suraj Bali and that when Suraj Bali died Nanku inherited his share and when Nanku died she inherited it from him. 3. In 1935 Manni Lal executed a mortgage deed of the 2/3rd house in favour of Durga Prasad to pay off a decretal debt due from Mst. Pana in respect of a debt due from Nanku. Pana's share in the house was put to sale in execution. Manni Lal applied to be allowed to deposit the decretal amount and save the property in view of his reversionary right. He executed the mortgage Ex. C-5 dated the 27th February, 1940, in order to obtain the money. By this mortgage deed he borrowed Rs. 1,200 from Durga Prasad, and he deposited for the payment of the amount decreed against Mst. Pana Rs. 456-8-0. In 1935 Manni Lal and Nanku had executed the mortgage Exh. C-6 in favour of one Babu Ram and the money obtained by means of Exh. C-5 was used for the purpose of paying off this mortgage also. When Rs. 456-8-0 were deposited by Manni Lal in Court, a charge for that amount was declared on the property by the executing Court in Manni Lal's favour. This charge has been held by the lower Court not to enure for the benefit of Durga Prasad. 4. The lower Court held that Durga Prasad was, since he had paid off the money due to Babu Ram in respect of Exh. C-6, subrogated to his interest and that his mortgage was so far valid as against the whole property to which Exh. 4. The lower Court held that Durga Prasad was, since he had paid off the money due to Babu Ram in respect of Exh. C-6, subrogated to his interest and that his mortgage was so far valid as against the whole property to which Exh. C-6 related, but that in respect of the remainder of his mortgage, since Manni Lal owned only 1/3rd share of the house, that was all that he could bind by the mortgage and that therefore Durga Prasad's mortgage was not binding upon the share of Mst. Pana, the Plaintiff, that is upon 2/3rd of the house. 5. Durga Prasad has come in appeal against this decision paying a court-fee as on a claim for a declaration. The office report claims that ad valorem court-fee should have been paid, and that, as Rs. 15 has already been paid, Rs. 117-8-0 are now due. 6. Appellant's learned Counsel contests this report. He argues that though he was a proper party to the suit, he was not a necessary party nor could he get any relief in the suit whether successful or not. But a decision in the nature of a declaration has been made against him in the course of the suit and he has come in appeal. He has not come for any relief in this suit, but merely for the setting aside of the declaration made in the course of the suit which will stand as a bar against his receiving relief in a future suit. In the future suit also for the recovery of his dues under the mortgage he will have to pay court-fee. If he is made to pay court-fee in this suit, he will be made to pay court-fee twice over. 7. We think that there is considerable force in these arguments. 8. The cases cited by the office and the learned Assistant Government Advocate are Madho Ray v. Musammat Bibi Mahbuwan Nisa (1926) 5 Pat 721. In this case there was an actual decree for sale of the property charged if the decretal money was not paid within four months In the present case there can be no decree for sale of the property even if this appeal succeeds. 9. Kundan Lal v. Duli Chand (1932) 54 All 347. This was a mortgage case. In this case there was an actual decree for sale of the property charged if the decretal money was not paid within four months In the present case there can be no decree for sale of the property even if this appeal succeeds. 9. Kundan Lal v. Duli Chand (1932) 54 All 347. This was a mortgage case. It is certain that the facts of this case are much more nearly parallel to the present case than any other cited, but it was a mortgage suit for sale. It was possible for the Appellant to recover his money in that suit, though he could not enforce payment. In this partition suit the Appellant cannot recover his money. 10. Venkappa v. Narasimha (1887) 10 Mad 187, has no application. This was a suit on a mortgage and the decree was for payment of principal and interest and in default sale of the mortgaged property. The judgment-debtors tried to get rid of the charge on the property by filing an appeal on a stamp of Rs. 10. 11. Moti Begam v. Har Prasad (1918) 16 A.L.J. 81. In this case in a suit on a mortgage, the widow set up as a shield against the mortgage an alleged previous mortgage hypothecating the same property as security for her dower debt. It was held that she had no prior lien, and she went in appeal paying a court-fee of Rs. 10. It was held insufficient. In this case her contention was that the property could not be sold unless her dower debt were first paid. It is clear that she was trying to go behind the decree and obtain the use of the property or else the payment of her dower debt. There was clearly a consequential relief concealed in this appeal. 12. Premsukh Das v. Shah Gopi Saran (1919) 4 P.L.J. 323. This was a suit for sale of property under a mortgage deed, and it was held that the property could only be sold subject to Defendant 3's deed for Rs. 14,000. The Plaintiff appealed and prayed that the decree should be modified by removing the condition as to priority of Defendant 3's mortgage and its redemption by the Appellant. He was made to pay ad valorem court-fee. 14,000. The Plaintiff appealed and prayed that the decree should be modified by removing the condition as to priority of Defendant 3's mortgage and its redemption by the Appellant. He was made to pay ad valorem court-fee. Here again he obtained a decree for sale which was largely useless to him on account of the prior charge There was therefore a consequential relief involved. 13. AIR 1928 316 (Nagpur) . This also was a mortgage suit in which the question at issue was whether certain excluded property should be made liable under the decree. There is clearly a consequential relief in such a case. In the case before us there is no question of making any property liable under the decree as there is no mortgage decree. 14. None of the other decisions cited seems to have any application to the case. We are of opinion that there is no occasion to make the Appellant pay ad valorem court-fee in this case as there is no consequential relief sought in this appeal. He cannot obtain a decree on the basis of his mortgage in this case but must bring a separate suit. He has been unnecessarily impleaded in this case though he was not an improper party, and in the course of the case a finding has been arrived at which would be a bar against him in respect of 2/3rd of the house in any subsequent suit on his mortgage. He is therefore bound to appeal or submit to its becoming res judicata. It cannot, however, be said that he is seeking any consequential relief in this suit or that by this appeal, if successful, the property will become liable to sale on the basis of the mortgage. The mortgage suit may, if brought, be contested on other ground and fail. 15. We therefore hold that the court-fee already paid is sufficient. Let the memo of appeal be accepted.