JUDGMENT P. Govinda Menon, J. 1. This is a reference under the Court Fees Act referred to us for disposal. In this case the plaintiff obtained a decree against the defendant on a promissory note alleged to have been executed by him to the plaintiff on 10th July 1953 for a sum of Rs. 2,590. The defendant raised various contentions all of which were negatived by the trial court and a decree was passed with interest at 6 per cent. In this appeal filed by the defendant, he wants this court to reverse the decree and dismiss the suit. The question raised is as to what is the court fee that he would have to pay on the appeal memorandum. 2. The claim made in the plaint was for a sum of Rs. 3,520 being the principal amount of Rs. 2,590 under the promissory note and interest of Rs. 930 from the date of the execution of the promissory note to the date of the plaint. Court fee has been paid on this amount in the suit and it has been paid in the appeal also. According to the report of the office, court fee ought to be paid on Rs. 3,735-10-9 which is the amount decreed, which sum includes the interest from the date of the plaint up to the date of the decree. The question is whether this amount of Rs. 3,735-10-9 is the subject matter in appeal and whether the defendant has to pay court fee on this amount which is decreed against him. 3. Section 2 of the Kerala Court Fees Act is the charging section. It states that no document of any of the kinds specified as chargeable in the first or second schedule to the Act shall be filed, exhibited or recorded in any court of justice, unless the fee specified in the first or second schedule has been paid on it. Article 1 fixes the actual amount leviable and it taxes the document ad valorem in accordance with the amount of value of the subject matter m dispute unless the matter has been otherwise provided for in the Act. The question would be what is the subject matter of the dispute in appeal. 4. Under section 34 of the Civil Procedure Code Francis the award of interest is discretionary. The question would be what is the subject matter of the dispute in appeal. 4. Under section 34 of the Civil Procedure Code Francis the award of interest is discretionary. Interest may be awarded by court at such rate as it deems reasonable on the principal amount adjudged from the date of the suit to the date of the decree. In addition to the interest adjudged on the principal sum for any period prior to the institution of the suit the court may also grant further interest at such rate as it deems reasonable on the aggregate sum adjudged from the date of the decree to the date of payment. So when a plaintiff files a suit for recovery of money he need not pay court fee on the amount of future interest, because at that stage he cannot compute with precision a sum due to him prospectively and secondly because the grant of such interest is wholly discretionary. The principle is well settled that court fees are leviable on sums which can be ascertaind with certainty, but not on those which cannot be ascertained. It is on this ground that court fees on plaint is payable on interest claimed up to the date of the suit, but not beyond. Now in this case interest has been awarded and the defendant seeks to avoid the decree by filing an appeal. 5. Whereas in a suit grant of future interest is discretionary with the court, it is not a subject matter in dispute, the amount or value of which is ascertainable. But the subject matter in a suit and the subject matter in an appeal are different though in many cases they may be identical: on the trial court exercising discretion one way or other granting or refusing future interest, its grant or refusal becomes a subject matter in dispute in appeal and the memo of appeal directed against its grant or refusal as the case may be must bear court fees either under article 1. schedule 1 or under article 7, schedule 2 as it is or it is not possible to estimate at a money value the subject matter in dispute. As Kumaraswami Sastri, J., observed m In re Porkodi Achi, I.L.R. 45 Mad. 246. schedule 1 or under article 7, schedule 2 as it is or it is not possible to estimate at a money value the subject matter in dispute. As Kumaraswami Sastri, J., observed m In re Porkodi Achi, I.L.R. 45 Mad. 246. "The current of authority is clearly in favour of the view 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."t 6. In Sheikh Rahiman v. Balchand, A.I.R. 1937 Nag. 6 the suit was to enforce a mortgage by conditional sale. The principal amount secured on the mortgage was Rs. 3,900 and the claim was for Rs. 9,539-11-0. The lower court decreed this sum and added interest to it bringing the decretal amount to Rs. 10,360 exclusive of costs. In appeal the 1st defendant did not challenge the mortgage, but only the amount fixed for redemption. He had admitted his liability for Rs. 4,974-12-3 and wanted the amount of the decree against him to be reduced accordingly. The court fee was paid on Rs. 4,564-14-9 which is the difference between the amount claimed in the plaint and the amount he admitted. The office wanted that court fee should be paid on the difference between the amount decreed and the amount admitted. The defendant would have it that as he does not dispute the plaintiffs right to future interest he need not pay any court fee on that amount. Vivian Bose, J., observed: The object of the appeal before me is to lessen the burden imposed on the appellant by the decree. The sum fixed in it is definite. Because of the addition of future interest, the value of the subject matter in dispute is more than it was in the first court. Once it is accepted that section 7 (ix) does not apply, then the general rule in Article 1, Schedule 1 becomes applicable. There is no point in the appellant saying that he does not dispute the mortgagee's right to future interest because he wants the decree reduced by a sum which is capable of exact calculation, end which he himself names. He must, therefore, pay court fees on it whatever his reasons for seeking the reduction may be. 7. In Babu Balmukund Gupta v. Secretary of State, A.I.R. 1941 All. He must, therefore, pay court fees on it whatever his reasons for seeking the reduction may be. 7. In Babu Balmukund Gupta v. Secretary of State, A.I.R. 1941 All. 295, the Secretary of State filed a suit against the defendant for recovery of possession of the land trespassed upon, for demolition of the building constructed on the land and for damages and the suit was valued at Rs. 6,900. The Subordinate Judge passed a decree ordering the defendant to pull down so much of the building as stood upon the plaintiff land and awarded damages as claimed by the plaintiff. Defendant appealed praying that the decree be set aside in its entirety. He put his own valuation in the appeal. On objection being raised as to the correct court fee to be paid, it was held: "When the dispute is at the stage of an appeal by a defendant who seeks to set aside the whole decree then it appears to me that the value of the subject master in dispute must necessarily be the value of the relief granted by the decree which the appellant wishes to disembarrass himself of. In such a case, one has to ask oneself this question: What is the value to the appellant of immunity from the decree? Upon the answer to that question must, I think, depend the value at which the appeal ought to be assessed. In other words, one has to find out the value of the relief granted which it is sought in the appeal to get rid of." 8. In In re Kantheeswaram Ekanthalingaswami Koil, A.I.R. 1937 Mad. 46 the distinction between an appeal by the plaintiff who has had his suit dismissed and that of an unsuccessful defendant has been recognised. Horwill, J., stated: It is however necessary to maintain a distinction between an appeal by a plaintiff, who has had his suit dismissed, and that of an unsuccessful defendant. The latter has to rid himself of the decree and therefore everything that has been granted to the plaintiff in the decree and against which he wishes to appeal must be the subject matter of the appeal, even though more has been given in the decree (by way of interest of ascertained mesne profits, for example) than was due to the plaintiff at the time of filing his suit. But the plaintiff who has had his suit dismissed is in fact told that he had no cause of action against the defendant at the time of filing his suit, and it is against this adverse finding that he has to appeal. After having his suit dismissed he goes to the appellate court in the same position as at the time of filing his suit. Even so long ago as 10 M.L.J. 144, this distinction between the position of a defendant-appellant and plaintiff-appellant was considered so obvious as not to require discussion, and this distinction has always since been maintained. 9. In R.A. Vankatathirisami Naidu v. R. V. Kasthuriranga Appaswami Naidu, A.I.R. 1933 Mad. 401, the question that arose was whether the plaintiff is entitled to include interest accruing subsequent to the institution of the suit in determining the value of the subject matter in dispute for the purpose of his filing an application under section 110, C.P.C. for permission to appeal to His Majesty in Council. It was stated: It is no doubt true that the value of a defendant appeal is the amount of the decree of this court, and that where interest up to its date is included the appellant is entitled to a certificate if the whole sum thus composed reaches the minimum figure of ten thousand rupees. That was decided by the Privy Council in 8 M.I.A. 166, a case followed by Their Lordships in Bank of New South Wales v. Owston (4 A.C. 270). But it does not necessarily follow that the converse proposition, as it in sought to apply it to a plaintiffs appeal, is true ..A defendant must appeal against the whole decree standing against him. A plaintiff can do no more than appeal against the dismissal of his claim, as that claim stood at the date of his suit. The distinction is observed in assessing appeals of either kind to court fees; a plaintiff who appeals against the dismissal of his suit, as has been held in Srinivasa Rao v. Ramaswami (10 M.L.J. 144) and Vithal Hari v. Govind Vasudeo (17 Bom. 41) not having to include in his valuation interest accruing subsequent to suit, whereas a defendant must appeal against the whole decree, including any such subsequent interest. 41) not having to include in his valuation interest accruing subsequent to suit, whereas a defendant must appeal against the whole decree, including any such subsequent interest. The real ground for this difference is that whereas a defendant has to get rid of any sum, whether principal or interest, decreed against him, a plaintiff cannot insist upon the award of postplaint interest, as something to which he possesses a legal right. Its grant is under section 34 C.P.C. discretionary to the court, which may, if it thinks fit, award interest. 10. In cases of suits for mesne profits where past or future mesne profits are ascertained in a decree the decisions have held that the party preferring the appeal should pay court fee on the amount or value of the subject matter in appeal. If the defendant files an appeal seeking to get rid of the decree in whole or in part he will have to pay court fee in whole or in part on the amount decreed which he seeks to vacate. If the plaintiff seeks to file an appeal questioning the correctness of the amount ascertained and decreed in his favour, the subject matter of the appeal will be the excess amount he claimed to have, over that already awarded to him, and therefore, he will have to pay ad valorem court fee on the additional amount he claims. In either case, the mesne profits are ascertained and party, be he a plaintiff or a defendant, knows the exact amount which is the subject matter of appeal. It is unnecessary to deal with the cases bearing on this question. We are in respectful agreement with the view expressed in the cases referred to above and hold that the appellant has to pay court fee on the interest decreed from the date of the plaint to the date of the decree. 11. The learned counsel appearing for the appellant referred us to the decision in Mithoo Lal v. Mt.Chameli, A.I.R. 1934 All. 805 which takes a different view. The suit out of which the appeal arose was one for profits. It was decreed by the trial court for a certain sum of money with interest at 12 percent. The defendant appealed impugning the correctness of the decree passed by the court of first instance. 805 which takes a different view. The suit out of which the appeal arose was one for profits. It was decreed by the trial court for a certain sum of money with interest at 12 percent. The defendant appealed impugning the correctness of the decree passed by the court of first instance. In his memorandum of appeal no ground was specifically directed against the award of interest before suit or pendente lite. The appeal sought the reversal of the decree in its entirety and the dismissal of the suit. It was held that since the award of pendente lite interest was not challenged, no court fee need be paid. It would be seen that Their Lordships based their decision on section 34, C.P.C., that the award of interest is discretionary with the court. But the question whether when once the discretion has been exercised and interest has been awarded in the decree, the defendant should not pay court fee on the full amount of the decree, if he appeals for the decree has not been considered. In the case of an appeal the court fee payable was an ad valorem court fee on the subject matter of the appeal (Sch. 1, Art. 1). When one appeals it does not matter if the lower court was right or wrong or what the issue was. He attacks the decree of the lower court and therefore he must pay court fee on the amount decreed. 12. In the Full Bench case in Raghubir Prasad v. Varghese Shankar Baksh, I.L.R. 36 All. 40 it was held that "In the case of appeals or cross objections in suits for redemption or foreclosure, in all cases in which the amount declared by the court to be due at the date of the decree can be ascertained by reference to the judgment and the decree, it is that amount at which the appeal or cross objections should be valued." 13. In Baldeo Singh v. Kalka Prasad, I.L.R. 35 All. 94 a decree for sale on a mortgage declared that on the date fixed for payment a specified sum would be due from the mortgagor, which included interest pendente lite interest. In Baldeo Singh v. Kalka Prasad, I.L.R. 35 All. 94 a decree for sale on a mortgage declared that on the date fixed for payment a specified sum would be due from the mortgagor, which included interest pendente lite interest. It was held that the court fee payable in appeal by the defendants from such decree was to be assessed not on the amount claimed in the suit but upon the amount with interest pendente lite found due by the court of first instance. 14. Reference was made to the case in Lal Krishna Bans Singh v. Taivaba Begum, A.I.R. 1947 All. 295. No doubt the decision in Mithoo Lal v. Mt. Chameli, A.I.R. 1934 All. 805 was not dissented from, but it was distinguished on the ground that award of interest in that case was discretionary while in a suit on mortgage for enforcement of security the interest is recoverable as a matter of right and the court has no discretion, apart from the Debt Acts, to disallow pendente lite interest. But whether interest is recoverable as a matter of right or not the question whether in a case where interest has already been awarded and the decree is challenged in appeal court fee should or should not be paid has not been considered. 15. The view taken in Mithoo Lal v. Mt. Chameli, A.I.R. 1934 All. 805 has been followed in Mt. Keolpati v. B.N. Varma, A.I.R. 1937 Oudh 3 and for the same reasons we are unable to subscribe to the view. 16. The decision in Hasanali Fasal v. Firm Vora Karimji Adamji, A.I.R. 1953 Kutch 46 referred to by the learned counsel does not really help the appellant contention. 17. For all these reasons, we are of the view that the objection raised by the office is correct and that the appellant has to pay court fee on the interest from the date of the plaint to the date of the decree. We allow the appellant two weeks to make good the deficiency.