JUDGMENT: The defendant is the appellant. The suit was filed by the respondent/plaintiff for a direction to the defendant to return the gold chain weighing 65 grams by receiving the sum of Rs.833/- due to the defendant in respect of the pledge of the said jewel and borrowing of a sum of Rs.700/- on 27.8.1966. There is no dispute that the said chain, weighing 65 grams, was pledged with the defendant for the borrowing of a sum of Rs.700/-. The defence was that the plaintiff's right to redeem the pledged article had been lost long ago and the defendant had sold the articles. Both the courts below have concurrently held that the defendant had not proved the sale of the pledged article as per the provisions of the Tamil Nadu Pawn Brokers Act, 1943 (hereinafter referred to as the Act) and that therefore, the plaintiff is entitled to the decree as prayed for. In this Second Appeal, a preliminary objection was taken by the learned counsel for the respondent/plaintiff on the maintainability of the second appeal, in view of the provisions of section 102 of the Code of Civil Procedure, which I will deal with later on. 2. Learned Counsel for the appellant in this case contended that under the provisions of the Act and the Rules framed thereunder, and in particular section 11 (2) and the procedure prescribed for auction, the burden is on the plaintiff to prove that the article is not sold, if he wants to seek redemption under the provisions of section 11 (2) of the Act. section 11 of the Act reads thus: “11(1) Every pledge shall be redeemable within one year from the date of pawning, exclusive of that day; and there shall be added to that year of redemption seven days of grace within which every pledge shall continue to be redeemable. (2). A pledge shall further continue to be redeemable until it is disposed of as provided in this Act, although the period of redemption and days of grace have expired.” (Explanation omitted) It may be seen from this provision, which deals with the rights of both the pawner and the pawnbroker, that in so far as the pawner is concerned, he is entitled to redeem the pledged articles by payment of the amount at any time until the pawned articles are disposed of, as provided for in the Act. So far as the pawn-broker is concerned, he is not entitled to dispose of the pledged articles for a period of one year and seven days and thereafter an option is vested on the pawn-broker either to have the article disposed of and recover the amount lent or wait till the article is redeemed. This is the effect of section 11. Clause (1) of section 11, by providing that every pledge shall be redeemable within one year from the date of pawning and seven grace days thereafter, a restriction is put on the pawn-broker selling the property and realising the amount before that period of one year and seven days. The right under clause (1) of section 11 vested in the pawner, is in no way different from the one, which is made under clause (2) of section 11. Both the rights are, a right to redeem only the articles which are not disposed of. It is put in the negative form in section 11 (1), restricting the right of the pawn-broker in respect of the disposal of the article and recovering the amount lent on the pledge. In these circumstances, therefore, there could be no doubt that the burden of proving that the articles had been disposed of is on the pawn-broker because it is not as if the pawn-broker was obliged to sell as soon as the period of one year and seven days is over. An option is vested in him to dispose it of or ‘wait for the redemption. Therefore, the pawn-broker will have to establish that he had exercised his option and disposed it of. Even otherwise, proving the negative of nondisposal of the article, cannot be said to rest on the plaintiff even under the provisions of the Evidence Act. The burden is therefore on the defendant to prove that he had exercised his option and disposed of the said article and therefore, the plaintiff has lost his right of redeemption. 3. Learned Counsel for the defendant referred to the provisions of section 12 and the rules framed thereunder relating to the auction. Section 12(1) says that a pledge pawned shall not be disposed of by the pawn-broker otherwise than by sale at a public auction, conducted in accordance with such rules as may be prescribed. 3. Learned Counsel for the defendant referred to the provisions of section 12 and the rules framed thereunder relating to the auction. Section 12(1) says that a pledge pawned shall not be disposed of by the pawn-broker otherwise than by sale at a public auction, conducted in accordance with such rules as may be prescribed. The rules prescribed state that the pawn-broker in the city of Madras shall apply to the Commissioner of Police for permission for sale of the time barred jewels with a list, in triplicate, of jewels, etc. Rule 12 also provides for the mode of selling the articles. In particular, the learned counsel relied on the provision that the auction list should be published and the auctioneer is bound to send a printed catalogue to the pawner by registered post at least one week before the date fixed for the sale. All these provisions relating to the sale are referred to by the learned counsel to show that the pawner should have been aware of the sale and therefore, it is not necessary for the pawnbroker to prove the disposal and also in respect of his argument that the burden of proving that it had not been disposed of, is on the plaintiff. I am unable to see how this argument can be advanced at all in this case. If the case of the plaintiff that the pledged article had not been disposed of is to be accepted, it means the provisions of section 12(1) had not been invoked and there is no question of publication of the auction and sending of notice to the plaintiff at all. If really the defendant had taken action under section 12(1) read with the rules framed under the Act, it would have been easy for him to prove that fact by reference to some or other of the records or by such evidence as he may choose to satisfy the Court that there was a public auction in which the pledged article had been sold. The only evidence available in this case is the oral evidence of the defendant himself, which, both the courts below have concurrently rejected, as unbelievable and unacceptable. The only evidence available in this case is the oral evidence of the defendant himself, which, both the courts below have concurrently rejected, as unbelievable and unacceptable. In the circumstances, therefore, the defendant could not contend either that the plaintiff is not liable to seek the redemption of the article or that he has discharged the burden of proving that the article had been disposed of. Therefore, even on merits, the second appeal is liable to be dismissed. 4. Learned counsel for the respondent/ plaintiff, as already stated, took a preliminary objection as to the maintainability of the second appeal on the ground that the value of the suit as mentioned in the plaint was Rs.833/-and therefore, the value of the second appeal should also be the same and that therefore, under section 102, Code of Civil Procedure, the second appeal is not maintainable. Learned counsel for the defendant does not dispute that the suit is of a small cause nature and that is so in view of the decision of a Division Bench of Madhya Pradesh High Court reported in JODHAI RAMDAYAL v. BHARAT SUKHDI JODHAI RAMDAYAL v. BHARAT SUKHDI A.I.R.1959 M.P.97. However, he contended that the real value of the suit is not Rs.833/-, but it is more than Rs.3,0007#x002F;- and therefore, the second appeal is maintainable. I am unable to see how this contention also is open to the defendant. When the suit was valued at Rs.833/-, the defendant did not dispute the value. If the case of the defendant is that since the suit has been decreed to the effect that the plaintiff is liable to pay Rs.700/- with interest at 12% p.a. from the date of pledge till the date of redemption and therefore, he had valued the second appeal at Rs.700/- with interest at 12% p.a. from the date of pledge till the date of second appeal, I could understand the argument. But it is not possible for me to accept the argument that he will be entitled to revalue the suit for the purpose of the second appeal on the ground that 65 grams of gold, which is sought to be redeemed by payment of money, is more than Rs.3000/-now. 5. But it is not possible for me to accept the argument that he will be entitled to revalue the suit for the purpose of the second appeal on the ground that 65 grams of gold, which is sought to be redeemed by payment of money, is more than Rs.3000/-now. 5. Learned counsel for the defendant contended that under the Tamil Nadu Court fees and Suits Valuation Act, 1955 (hereinafter referred to as the Court Fees Act), in a suit for redemption of jewels pledged, the court fee should be paid on the value of the jewels and not on the value of the amount due for redemption of the jewels. But it is not necessary for me to go into that question, because that point was not taken by the defendant in the trial court at the time when he filed the written statement. Under clause (2) of section 12 of the Court-fee Act, the defendant is entitled to plead that the subject-matter of the suit had not been properly valued or that the court fee paid is not sufficient. If such a question is raised, the Court is bound to make an order after hearing the parties thereto. It is well established and there is also a decision of the Supreme Court on that question, that unless the plea/raised by the defendant on the value of the suit would affect the jurisdiction of the Court to deal with the subject-matter of the suit, the value determined and the court fee payable could not be questioned by the defendant in appeal or revision against the order of the trial court. However, in such cases, where the jurisdiction question is not involved, if the decree is ultimately against the defendant and appeal is preferred by him against that judgment, it is open to him to raise the question of court fee or the valuation, in the appeal that may be preferred, under section 12(4)(a) of the Court Fees Act;, because the order made by the trial Court on the question of valuation will not operate as res judicata and it will form part of the judgment, which was made in the suit itself. However, if the defendant had not raised the question of valuation originally, it is not open to him to raise that question, even when it comes up on appeal. However, if the defendant had not raised the question of valuation originally, it is not open to him to raise that question, even when it comes up on appeal. The learned counsel for the appellant relied on section 12(4)(a) of the Court Fees Act, which reads as follows- “12(4)(a) Whenever a case comes up before a court of Appeal, it shall be lawful for the Court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower court affecting the fee payable on the plaint or in any other proceedings in the lower Court and determine the proper fee payable thereon.” It may be seen from the, provisions extracted above, the appellate Court is entitled to ‘consider the correctness of any order passed by the lower court affecting the fee payable’. If there was no order made by the Court below affecting the fee payable, there is no question of the appellant questioning the correctness of that order. In this case, as already stated, the defendant did not raise the question of valuation of the suit or the court fee payable in the trial court itself, and therefore, it will not be possible for him to question that in this second appeal. In fact, he had not questioned it even in the first appeal preferred by him, even though he was the appellant in the court below; instead, he had simply adopted the value given by plaintiff in the trial Court. In the circumstances, therefore, it is not open to the defendant to revalue the claim in the second appeal, for the first time, in his own way. As already stated, it is necessary for the defendant to have valued the appeal including the interest payable by the plaintiff. The borrowing of Rs.700/- is stated to be on 27.8.1966. The second appeal was filed on 7.9.1981. Therefore, the period is a little more than 15 years. Even treating it as 16 years, if the interest is calculated at 12% p.a. for the said sum of Rs.700/-, the total amount will not be more than Rs.3000/-. In the circumstances, the second appeal, as such, is not maintainable and the preliminary objection has to be sustained. Therefore, the second appeal is liable to be dismissed both on the ground of maintainability and on merits. In the circumstances, the second appeal, as such, is not maintainable and the preliminary objection has to be sustained. Therefore, the second appeal is liable to be dismissed both on the ground of maintainability and on merits. Accordingly, the second appeal will stand dismissed. The plaintiff will be entitled to his costs. Counsel fee Rs.250/-. Appeal dismissed.