ORDER : K.T. Koshi, J. A preliminary point is raised that the court-fee paid on the memorandum of appeal is insufficient. The suit out of which the appeal arises is to redeem a unsufructuary mortgage dated 23rd Medam 1085 in favour of the 1st defendant in respect of 36 items of immovable properties. The principal amount secured there under is Rs. 9,141. ch. 19 c.o. On 7th Vrischigam 1096 the 1st defendant sub-mortgaged this mortgage right to the plaintiffs, the appellants herein. The sub-mortgage, however, relates only to 12 items included in the mortgage and it is for an amount of Rs. 7,151. ch. 3 c.8 On 22nd Vrischigam 1097 the original mortgagor executed an Udampadi in favour of the plaintiffs with respect to the 36 items included in the usufructuary mortgage and certain other properties belonging to him. According to the plaintiffs they obtained there under the full title to the equity of redemption over the 36 items included in the usufructuary mortgage and the full rights over the other properties comprised therein (Udampadi). The document expressly authorises the plaintiffs to redeem the usufructuary mortgage and the present suit was brought for that purpose. 2. The 1st defendant resisted the suit on various grounds and impugned the validity of the Udampadi. He also instituted a suit to redeem the sub-mortgage. The two suits were tried together. It was found that the Udampadi was a valid document, but that it was only a meloti conferring upon the plaintiffs the rights to redeem the usufructuary mortgage in favour of the 1st defendant. The court, however did not grant the plaintiffs an unconditional decree for redemption. Prior to the institution of these two suits the mortgagor had executed a Puravaipa deed in favour of the 1st defendant and the court found that that document conferred on the 1st defendant the right to redeem the melotti. The court, therefore, while granting the plaintiffs a decree for redemption made it a condition that in case the 1st defendant deposited in court for payment to the plaintiffs the principal money expressed to be secured by the meloti, within two months, the decree shall not take effect. The principal amount due was fixed at Rs. 8,742 ch. 9 c.4. The court, therefore, while granting the plaintiffs a decree for redemption made it a condition that in case the 1st defendant deposited in court for payment to the plaintiffs the principal money expressed to be secured by the meloti, within two months, the decree shall not take effect. The principal amount due was fixed at Rs. 8,742 ch. 9 c.4. The decree was passed on 29th Thulam 1121 and the 1st defendant complied with the condition imposed on him by depositing in court the said amount on 3rd Dhanu 1121. This appeal was filed on 15th Karkadagam 1121. A similar decree was also passed in the 1st defendant's suit and that forms the subject of the connected appeal, A.S. 571/1121. That appeal is also preferred by the present appellants. 3. The plaintiffs-appellants seek two reliefs in the present appeal. Those two relief’s are.- (1) deletion of the condition imposed by the court below on plaintiff's right to redeem and (2) enhancement of the rate of mesne profits fixed by the court below. We are not, in the matter of preliminary objection, concerned with the second relief. 4. The appellants have valued relief (I) as per Art. 8(vii) of Schedule II of the Court Fees Act (Travancore) and paid a court fee of Rs. 10 accordingly. Art. 8(vii) of Schedule II provides for payment of a fixed court fee of Rs. 10 for certain specified classes of suits and after referring to six such classes a residuary provision is enacted in Cl. (vii). That provision brings within the fold of the Article "Every other suit where it is not possible to estimate, at a money value the subject-matter in dispute, and which is not otherwise provided by this Act". According to the 1st defendant-respondent who has raised the preliminary objection the memorandum of appeal should be valued and court fee paid there in the same manner as the plaint in the suit S. 4 (viii) (b) states that in suits for recovery of immovable property outstanding under a mortgage the amount of fee payable shall be computed according to the principal money expressed to be secured by the instrument of mortgage. The plaint in the suit was valued and court fee paid as enjoined by the said provision. The plaint in the suit was valued and court fee paid as enjoined by the said provision. The question is whether regard being had to the nature of the decree passed in the suit the memorandum of appeal should be valued and court fee paid thereon as stated above. S. 5 of the Court Fees Act states that the amount of fee payable on a memorandum of appeal shall be calculated as if it was a suit under the provisions of S. 4, for the reliefs claimed in the memorandum of appeal S. 4 provides that the amount of fee payable in suits, original or appeal, shall be computed as set out in the various clauses appended thereto. In the light of the above provisions of the Court Fees Act in a case where a suit for redemption is dismissed and the plaintiff appeals he will have to value the appeal and pay court fee in the same manner as the plaint. But can it be said the same rule should apply when a redemption decree is passed with a condition superadded to it and all that the plaintiff-appellant seeks to obtain by the appeal is to get rid of that condition. It may, in this context, be observed that Ss. 4 and 5 of the Travancore Court Fees Act steers clear of several controversies that have gathered round the corresponding provisions (Ss. 7 and 8) of the Court Fees Act (1870 Indian). In the Indian High Courts there is considerable divergence of opinion whether the provisions of S. 7 would apply to appeals. By express mention in the Travancore enactment 'in suits, original or appeal' in S. 4 that controversy is avoided. Again S. 8 of the Indian Act (corresponding to S. 5 of the Travancore Act is limited in its application to appeals in Land Acquisition Cases alone while S. 5 of the Travancore Court Fees Act applies to all appeals. 5. It is clear from S. 5 that where a suit for redemption is dismissed simpliciter and the plaintiff appeals, court fee is payable as on the plaint. Can it be said that the present is a case where the suit for redemption has been so dismissed. It would certainly be untrue to say so. 5. It is clear from S. 5 that where a suit for redemption is dismissed simpliciter and the plaintiff appeals, court fee is payable as on the plaint. Can it be said that the present is a case where the suit for redemption has been so dismissed. It would certainly be untrue to say so. If the 1st defendant did not pay the money he was directed to pay into court within the time specified the plaintiffs would, as a matter of course, have become entitled to execute the decree and recover possession of the mortgaged properties. No occasion at all would then have arisen for them to prefer any appeal. If the condition imposed is unsustainable its performance by the 1st defendant cannot deprive the plaintiffs of their right to seek its removal in appeal. Nor would an appellate court's powers to remove an unsustainable condition be any the less on account of such performance. If this Court were to remove the condition, the effect of the removal would be the same as if the condition never existed. The decree this Court passes would be just the decree the lower court ought to have passed. Relief (1) in the memorandum of appeal only seeks to have that condition removed and it is difficult to hold that it is the same relief as claimed in the plaint. There is no absolute denial by the court below of the plaintiffs' right to redeem and as such the plaintiffs' cannot be called upon to pay the same court fee as they paid on their plaint. S. 5 makes it clear that the value of an appeal is not in all cases the value of the suit as originally filed but the value of the relief granted by the decree which a party wishes to get rid of. In some cases the court-fee payable may be more than that the plaintiff paid on the plaint and in some cases it may be less. This is also the effect of the decisions in the Indian High Courts. See In re Porkodi Achi I.L.R. 45 (1922) Mad. 246. What is judge-made-law in the Indian Provinces is given statutory recognition by S. 5. This is also the effect of the decisions in the Indian High Courts. See In re Porkodi Achi I.L.R. 45 (1922) Mad. 246. What is judge-made-law in the Indian Provinces is given statutory recognition by S. 5. In the case now named there is an exhaustive review of the Indian rulings bearing on the question by Kumaraswami Sastri, J. and if I may say so with respect, the judgment would amply repay perusal. 6. If the court fee payable on the memorandum of appeal in this case is not the same as that paid on the plaint, the question is what fee is payable on the same. The answer to it must depend on whether it is possible to estimate at a money-value the subject matter in dispute, namely the removal of the condition imposed by the court below and whether there is any provision in the Court Fees Act which covers a case like the present. There is no express provision in the Court Fees Act how court-fee should be paid on appeals against conditional decrees. We cannot, therefore, think of any other provision as applicable than that resorted to by the appellants in this case, namely, Art. 8(vii) of Schedule II. Decided cases can be found to support this view. In Rup Chand v. Fateh Chand I.L.R. 33 (1911) All. 705 a plaintiff brought a claim for possession of certain property as transferee from one Musammat Gomi. The trial court held that the plaintiff was entitled to possession but that possession should be restricted to the life-time of Musammat Gomi. Both the plaintiff and the defendant appealed against the decree. In the plaintiff's appeal he sought to set aside so much of the lower court's decree as declared him to be entitled to possession for the life-time of Musammat Gomi and he asked the court on appeal to declare that he is entitled to the absolute ownership of the property and not to a limited interest. He paid a court-fee of Rs. 10 alone. Question was raised as to the sufficiency of the fee paid and it was contended that ad valorem fee, as in a suit for possession of land should be paid. He paid a court-fee of Rs. 10 alone. Question was raised as to the sufficiency of the fee paid and it was contended that ad valorem fee, as in a suit for possession of land should be paid. The court did not accept the contention and held that the plaintiff appellant appeared to be in the position of a person is possession of property who seeks to clear his title and to obtain a declaration that he has the full right of ownership of the property. The court, therefore, held that court fee paid was sufficient. No doubt, the Article relied upon by the learned judge is not found in the Travancore Court Fees Act. But it is important that the court did not say ad valorem fee as on the plaint in that suit should be paid. Commenting on the above decision and after quoting from the judgment the observations to the effect that the appeal should be treated as one seeking to clear the plaintiff's title and to obtain a declaration that he has a full right of ownership of the property, Kumaraswami Sastri, J. observed in the Madras case quoted above thus:- "Treating the subject matter of the appeal as one to get rid of the limitation imposed by the Subordinate Judge it is difficult to see how it can be valued". It is clear the learned Judge's view was that it was more appropriate to hold that the court-fee paid was sufficient as per Art. 17 (vi) of Schedule II of the Court Fees Act, 1870 which corresponds to Art. 8 (vii) of Schedule II of the Travancore Court Fees Act. It is difficult in my view to distinguish that case from the case on hand. 7. The decision in Deputy Commissioner Kheri v. Shantranji A.I.R. (1940) Oudh 193 contains some observations relevant to the question. There the appeal related to the manner in which the decree can be enforced and not to the amount for which the decree was passed. The question what the court-fee payable was raised and in the course of the discussion the learned Judges (Ziaul Hasan and Hamiltio, JJ.) observe: "What the appellant objected to is the condition imposed by the learned special Judge in the decree granted to him. The question what the court-fee payable was raised and in the course of the discussion the learned Judges (Ziaul Hasan and Hamiltio, JJ.) observe: "What the appellant objected to is the condition imposed by the learned special Judge in the decree granted to him. It is, we think a case which comes under Art. 17 (vi), Schedule II, Court Fees Act, in that it is not possible to estimate the subject matter of the appeal at a money value". 8. In supporting the preliminary objection the respondent relied on a decision of the Oudh Judicial Commissioner's Court Ragha Sah v. Wajid Ali 50 (1919) I.C. 353. There in a suit for possession by the mortgagee the court passed a conditional decree allowing the mortgagor to redeem the property on payment of a certain sum of money. The mortgagee in appeal prayed for an unconditional decree and paid an ad valorem court-fee as in a suit for possession on five times the Government revenue of the land in dispute. Question was raised whether the plaintiff should not pay ad valorem court-fee on the amount which the defendant had to pay to recover possession. Obviously a higher court fee was leviable if that contention were right. The court negatived the contention, but it is difficult to see how that case can be relied upon as an authority to support the position that to remove the condition the appeal should be valued as a plaint to recover possession. No doubt, court-fee paid there was on that basis. The appellant offered to pay and actually paid the court-fee levied on the plaint. He conceded that position and the dispute was only whether the higher fee payable on the amount which the defendant was directed to pay if he were to redeem the property should be paid. The question raised here was not mooted or decided. This case was referred to in In re Porkodi Achi I.L.R. 45 (1922) Mad. 246 and the view that the plaintiff cannot be made to pay more in his appeal than he would have to pay had his suit been dismissed was not regarded as a consideration which is of much weight. It is observed that no reference is made to any authorities and that the facts of the case are also peculiar. 246 and the view that the plaintiff cannot be made to pay more in his appeal than he would have to pay had his suit been dismissed was not regarded as a consideration which is of much weight. It is observed that no reference is made to any authorities and that the facts of the case are also peculiar. The anomaly pointed out is due to the absence of any specific provision in the Court Fees Act regarding conditional decrees. The subject-matter in appeal need not, as we have already seen, necessarily be the same as the subject-matter of the suit. If the suit is decreed and the plaintiff or the defendant appeals merely challenging the amount to be received without questioning the right to redeem, the court fee is payable on the ad valorem scale on the amount claimed or denied. In In re Porkodi Achi the plaintiff was seeking to get rid of the liability to pay a specific amount and he had therefore, to pay court-fee on that amount which happened to be in excess of the court-fee paid on the plaint. The defendant who had appealed against the decree for surrender had only to pay the same court-fee was levied on the plaint. 9. The preliminary objection cannot in our opinion be sustained either on principle or on the provisions of the Court Fees Act or on authorities. We, therefore, overrule it and hold that the court-fee paid is sufficient. The appeal will be duly posted for hearing. Sankaran, J. - I agree Mathew Muricken, J. - I also agree. Preliminary objection overruled.