Judgment N.L.Untwalia, J. 1. Civil Revision 678 of 1963 is by the defendants and Civil Revision 712 of 1963 is by the plaintiff from the same order dated the 25th March, 1963, of the learned Additional District Judge of Darbhanga in Title Appeal No. 159/2 of 1961/1963. 2. The plaintiff filed a suit in the trial court against the defendants for the following reliefs: 1. Handing over the original sale deed dated 17-1-61 executed by her late father for being presented before the Registrar for registration. 2. For calling upon the defendants to admit the execution of the said sale deed and register the same before the proper authority". The case of the plaintiff was that her father, Chiman Lal Bhartia, had executed a sale deed in her favour in respect of a property known as Light House Cinema within the town of Darbhanga for a sum of Rs. 60,000/-. Out of this sum Rs. 40,000/-has been paid by adjustment and Rs. 20,000.00 was to be paid in cash, which, according to the plaintiff, she had paid to her father. Thereafter, her father suddenly died after the execution of the sale deed which could not be registered. The sale deed, along with other papers, was taken possession of by the executors of the Will of the deceased father of the plaintiff. Subsequently the plaintiff requested the defendants and the trustees to admit the execution and register the sale deed, but they did not do so. A point had been taken before the learned Subordinate Judge that the plaint was insufficiently stamped, but issue No. 6 framed in regard to that matter was decided against the defendants and in favour of the plaintiff. Ultimately, the suit was decreed by the learned Subordinate Judge. The defendants filed the title appeal in the court of the District Judge of Darbhanga, which was ultimately transferred for disposal to the court of the Additional District Judge. The appeal was registered and admitted on the amount of court fee paid, which was in accordance with the amount paid on the plaint. The Stamp Reporter, who happened to visit Darbhanga reported that the plaint arid memorandum of appeal were insufficiently stamped and ad valorem Court fee on the amount of Rs. 60,000.00 ought to have been paid by them upon the plaint and upon the memorandum of appeal. The Stamp Reporter, who happened to visit Darbhanga reported that the plaint arid memorandum of appeal were insufficiently stamped and ad valorem Court fee on the amount of Rs. 60,000.00 ought to have been paid by them upon the plaint and upon the memorandum of appeal. What had happened in the appeal in the meantime was that the dispute was referred by the court to arbitration on a joint request of the parties. The Arbitrator made an award and filed it in court. The appellate court was asked to pass a decree in terms of the award. But, in the meantime, this complication of insufficiency of court fee cropped up, and, naturally, both the plaintiff and the defendants joined hands in challenging the report of the Stamp Reporter. The learned Additional District Judge has accepted the Report of the Stamp Reporter that ad valorem court-fee was payable on the sum of Rs. 60,000.00 on the plaint by the plaintiff and the same amount is payable on the memorandum of appeal filed by the defendants. The operative portion of the order which he passed in the appeal is in the following terms: "I accordingly hold that the court-fee payable is as reported by the Stamp reporter which must be paid by both the parties within a month from the date of the report of the Seristedar. The Senstadar will calculate the court-fee accordingly and submit his report within a week. If the parties fail to pay the court-fee within the time allowed, the matter will be reported to the District Magistrate for recovery of the court-fee. The Award of the Arbitrator is accepted and a decree shall follow in accordance with that award. The appeal is thus disposed of". It is against this order that both the parties have come up to this court in revision. 3 Having heard the learned advocates for the petitioners and the learned Government pleader I am of the view that the decision of the learned Additional District Judge that ad valorem court-fee was payable on both the documents on the sum of Rs. 60,000, is correct. In substance, the suit filed by the plaintiff was a suit for specific performance and the value of the property covered by the contract contained in the sale deed being Rs. 60,000/-, ad valorem Court fee was payable on that amount on the plaint. 4. 60,000, is correct. In substance, the suit filed by the plaintiff was a suit for specific performance and the value of the property covered by the contract contained in the sale deed being Rs. 60,000/-, ad valorem Court fee was payable on that amount on the plaint. 4. But even so, serious objection has been taken by the petitioners to the operative portion of the order passed by the learned Additional District Judge and it is not disputed by the learned Government pleader that the learned Additional District Judge has not passed a proper and legal order as he ought to have passed, in the circumstances of the case. There is no legal basis in support of the order of the court below to dispose of the appeal and to report the matter to the District Magistrate for recovery of the deficit amount of court-fee. The proper course for the learned Additional District Judge to follow was to direct the defendants-appellants before him to pay the deficit amount of court-fee on the memorandum of appeal within the time to be fixed by him and to ask the plaintiff respondent to pay the deficit amount of court-fee upon the plaint within the time to be fixed, after the payment of the court-fee on the memorandum of appeal. The appeal ought not to have been disposed of and a decree on the basis of the award ought not to have been passed unless the deficit amount of court-fee was paid by both the parties on both the documents. The penalty should be that if the defendants appellants did not pay the deficit amount of court-fee on the memorandum of appeal, the memorandum of appeal ought to have been rejected. If they paid the deficit amount and if the plaintiff-respondent did not pay the deficit amount of court-fee payable upon the plaint, the plaint ought to have been rejected. The appeal could proceed to disposal and a decree upon the basis of the award could be made only when both the parties paid the deficit amount of court-fee payable on both the documents. To this extent the position of law does not, seem to be much in dispute. The appeal could proceed to disposal and a decree upon the basis of the award could be made only when both the parties paid the deficit amount of court-fee payable on both the documents. To this extent the position of law does not, seem to be much in dispute. But contentious argument has been advanced in this Court on behalf of the petitioners and the State that even if the deficit amount of court-fee on the memorandum of appeal is not paid by the defendants, still the appellate court can insist for the payment of deficit amount of court-fee upon the plaint and upon failure of the plaintiff to pay the same, the plaint is liable to be dismissed or rejected by the appellate Court. I shall now proceed to examine this contentious question raised by the parties before me. 5. Sec.12 of the Court Fees Act provides as follows: "(i) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this Chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit. (ii) But whenever any such suit comes before a Court of appeal reference or revision, if such? Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party, by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of Section 10, paragraph (ii) shall apply". With reference to the said provision, it has been held by a Bench of the Calcutta High Court in the case of Bidhu Bhusan Bakshi V/s. Kala Chand Roy, AIR 1927 Cal 775 that a suit comes before a court of appeal within the meaning of Sub-clause (ii) of Sec.12 of the Court Fees Act when the appeal is registered in such court and the appeal cannot be said to be registered unless the memorandum of appeal is sufficiently stamped. In that view of the matter it was observed that court-fee on the plaint cannot be demanded before the registration of the appeal on payment of court-fee. In that view of the matter it was observed that court-fee on the plaint cannot be demanded before the registration of the appeal on payment of court-fee. This view was followed by another Bench of the Calcutta High Court presided over by Rankin C. J. in the case of Jalekha Bibi V/s. Danis Mahomed, AIR 1930 Cal 65 wherein the learned Chief Justice has said as follows:. "The word filed in Sec.12 occurs only in the first half and not in the second half and even if there is room for the contention that the phrase whenever any such suit comes before a Court of appeal is satisfied when the memorandum is presented and before it has been accepted or registered even so it is plainly much the better practice that these contentious questions as to documents in the lower courts should be dealt with when the memorandum of appeal has been accepted and registered and should not be dealt with as a condition of the acceptance or registration of the memorandum of appeal". In the case of Abdul Sattar V/s. Mt. Hamidan, AIR 1950 Pat 239 it has been pointed out that where a plaint as well as the memorandum of appeal filed by a plaintiff are found insufficiently stamped, the proper course to be followed by the appellate court is to direct that the appeal be registered on the appellant supplying the deficit court-fees as regards his memorandum of appeal, and after the appeal has been registered and before it has been dealt with under Order 41, Rule 11, Civil Procedure Code to place the case for orders under Sec.12, Sub-clause (ii), Court Fees Act, as regards the deficit court-fees on the plaint in the lower court. It is, therefore, clear that at the initial stage, when a memorandum of appeal is filed on insufficiently stamped paper under Sub-clause (ii) of Sec.12 of the Court Fees Act, the appellate court cannot, or, in any event, should not ask for payment of the deficit court-fee on the plaint until and unless the deficit court fee on the memorandum of appeal is made good and the appeal is registered. 6. 6. But the learned Government pleader submitted that even though at the initial stage of the filing of appeal the procedure as laid down by the decisions of the Calcutta High Court and the Patna High Court is to be followed, but if subsequently after the registration and admission of the appeal it is found that the memorandum of appeal and the plaint were insufficiently stamped, the appellate court has power to ask the parties to make good the deficit amount of court-fee in both the documents, and need not wait for the rejection of the plaint until the deficit amount on the memorandum of appeal is paid. I am not prepared to accept this contention. No direct authority was cited by the learned Government pleader in support of this submission. He has referred to some observations in the cases of Rajdeo Narain Singh V/s. Ramdil Singh, 5 Pat LJ 508: (AIR 1920 Pat 827) Brij Krishna Das V/s. Murli Rai, 4 Pat LJ 703: (AIR 1920 Pat 656), Venkataramasastri V/s. Venkatasubramania, AIR 1940 Mad 674 , Parvati Devi V/s. Dhodhi Lal, AIR 1957 Pat 533 and Faizullah Khan V/s. Mauladad Khan, AIR 1929 PC 147. In my opinion, none of these cases supports the contention of the learned Government pleader. I shall briefly refer to some of the observations in the decision cited above. In Rajdeo Narains case, 5 Pat LJ 508: (AIR 1920 Pat 827) which was decided earlier than Brij Krishna Dass case, 4 Pat LJ 703 : (AIR 1920 Pat 656) it has observed: "The proper course whenever it is intended to recover a deficit from a respondent before this court in respect of something due in a lower court appears to be to admit the appeal for hearing and to take action under Section 12 read with Sec.10 of the Court Fees Act. The Court is then in full season of the case and can punish the defaulting plaintiff or first appellant as the case may be by the dismissal of his suit or appeal". In my opinion, the observation quoted above instead of helping the learned Government Pleader, goes to some extent against his contention. The Court is then in full season of the case and can punish the defaulting plaintiff or first appellant as the case may be by the dismissal of his suit or appeal". In my opinion, the observation quoted above instead of helping the learned Government Pleader, goes to some extent against his contention. In the case of Brij Krishna Das, 4 Pat LJ 703: (AIR 1920 Pat 656) the order which was passed in the first instance was in the following terms: The order, therefore, that we shall pass is that the deficit court-fee to the extent of Rs. 975/-must be paid by the appellants before the appeal, can be entertained. They will have time till the 23rd June for complying with this order. In default, the memorandum of appeal will be rejected If and when the requisite court-fee upon the memorandum of appeal is paid the plaintiffs will be called upon, under Sec.12 of the Court Fees Act to pay the deficit of Rs. 975/- upon their plaint or before the both June. In the event of their failure to do so their suit will be dismissed without costs and the appeal of the defendants will be decreed with costs throughout". It will be seen from the note appended after the above order that the appellant complied with this order, but the plaintiff respondent failed to do so and then they passed the order dismissing the plaint instead of rejecting it although holding "that the result of the dismissal from the point of view of res judicata is the same as that of a rejection". In my opinion, the substance of this case is against the contention of the learned Government Pleader. Reliance has been placed on the following observation in Parvati Devis case, AIR 1957 Pat 533 : "So long as the appeal was pending, the court below was entitled to ask for the deficit court fee on the memorandum of appeal or in the plaint and the consequence of non-payment was either that the appeal was dismissed or the plaint was rejected or both". This observation was made under a different context and the point as to what is to happen if the deficit court-fee on the memorandum of appeal if not paid did not fall to be considered and was not considered in this case. 7. This observation was made under a different context and the point as to what is to happen if the deficit court-fee on the memorandum of appeal if not paid did not fall to be considered and was not considered in this case. 7. In the Privy Council case it was observed as follows: ".....that discretion extends to the whole or any part of any fee prescribed and can be exercised at any stage in the case, while finally upon the extra payment being made, then the document is to have the same effect as if it bad been paid in the first instance". On parity of reasoning I am inclined to hold that if at any stage of the appeal a demand is made upon the appellant to pay the deficit amount of court-fee on the memorandum of appeal and if he does not pay it, the document is to have the same effect as if the amount had not been paid in the first instance, i.e., the appeal will be deemed to have been not registered or the memorandum of appeal will be rejected for non-payment of the deficit court-fee. 8 The Madras decision has nothing to do with the point raised before. 9. In the result, I hold that the operative portion of the order of the learned Additional District Judge is bad and must be set aside. I, therefore, allow both the applications, set aside the order of the learned Additional District Judge and remit the case back to the appellate court and direct it to call upon, in the first instance, the defendants appellants to pay the deficit court-fee on the memorandum of appeal within a time to be fixed by that court and after such amount has been paid then to call upon the plaintiff-respondent to pay the deficit amount of court-fee payable on the plaint. But, if the defendants appellants fail to pay the deficit amount of court-fee on the memorandum of appeal by the time fixed by the appellate Court, the memorandum of appeal has got to be rejected and in that event there will be no question of calling upon the plaintiff-respondent to pay the deficit amount of court-fee on the plaint. There will be no order as to costs.