( 1 ) WHEN a decree granted in a suit to recover the money due on a mortgage is challenged in an appeal by a subsequent mortgagee, impleadedasa defendant in the suit, what is the court fee payable on such appeal under the Karnataka Court Fees and Suits Valuation Act, 1958 ("the Court Fees Act"), is the short question which needs to be considered and decided upon. ( 2 ) STATE bank of mysore, as plaintiff,filed a suito. s. No. 178/1979 in the court of civil judge at Mysore against k. Lingaiah, impleaded as defendant-1 therein, for recovery of money due on the foot of equitable morigages of the plaint schedule properties. Subsequent mortgagees of the said properties had been impleaded as defendants 2 to 6 in that suit. Defendant-2, in his written statement filed in the suit, pleaded, inter alia, that the equitable mortgages, on the foot of which the suit was filed, were invalid. The court of the civil judge, after due trial of the suit, rejected the plea raised by defendant-2 as to the invalidity of the said equitable mortgages and decreed the suit of the plaintiff by its preliminary decree dated the 30th day of July 1987, which read : ". . . . . . . . . . . . . . . . . . . . . . . . . . . . it is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated upto this 30-1-1988 is the sum of Rs. 3,86,618-11 p. For principal, the sum of Rs. 1,97,883-91 p. For interest 6% p. a. from 9-7-79 to 31-1-1988 for the said principal, the sum of Rs. . . . . . . . . . . . . . . . . . . . . for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon and the sum of Rs. 43,105-70 p. For the cost of the suit awarded to the plaintiff, making in all the sum of Rs. 6,27,607-72 ps. The 1st defendant fails to pay the decretal amount within 6 months from the date of decree the plaintiff can realise the amount only by sale of the suit schedule properties. 43,105-70 p. For the cost of the suit awarded to the plaintiff, making in all the sum of Rs. 6,27,607-72 ps. The 1st defendant fails to pay the decretal amount within 6 months from the date of decree the plaintiff can realise the amount only by sale of the suit schedule properties. It is further ordered and decreed that excess amount realised by sale of suit schedule properties shall be adjusted or made payable to the second defendant and thereafter to defendants 4 to 6 respectively. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . it is the above preliminary decree which is appealed against in the. present appeal by defendant-2 in the suit. ( 3 ) THE appeal, as seen from its memorandum, is directed against the relief granted in the suit on the foot of equitable mortgages, as prayed for by the plaintiff. Defendant-2 (appellant) had since paid a fixed court fee of Rs. 200/- on the memorandum of appeal purporting to be under Section 47 read with Section 49 of the Court Fees Act, the registry of this court called upon the appellant to pay on the memorandum of appeal the ad valorem court fee payable on Rs. 6,29,607-72 ps. , as required under Section 49 of the Court Fees Act. 200/- on the memorandum of appeal purporting to be under Section 47 read with Section 49 of the Court Fees Act, the registry of this court called upon the appellant to pay on the memorandum of appeal the ad valorem court fee payable on Rs. 6,29,607-72 ps. , as required under Section 49 of the Court Fees Act. But, the question of court fee payable on the memorandum of appeal by the appellant being left open for decision, we have formulated the question, as indicated at the out-set, and are proceeding to decide it, having heard in the matter both the learned counsel for the appellant and the learned government advocate. ( 4 ) THE registry's demand for payment of d valorem court fee by the appellant on the memorandum of appeal as required under Section 49 of the Court Fees Act, was sought to be supported by the learned government advocate. According to him, when the appellant, in his appeal, had questioned the decree in the suit for recovery of money due on a mortgage, the court fee payable on the memorandum of such appeal would be as required under Section 49 of the Court Fees Act and as provided for in explanation (1) and explanation (3) thereto. The registry's demand for payment of ad valorem court fee on the memorandum of appeal was, on the other hand, resisted by the learned counsel for the appellant by putting forth the following submissions: (i) that the relief claimed by the appellant in the appeal being different from the relief prayed for or refused in the court of first instance, court fee, on the appeal memorandum, was payable under explanation (4) to Section 49 of the Court Fees Act; (ii) that the court fee payable on the memorandum of appeal was a fixed court fee as provided for in article 3 (iii) (1) (3) of scheduie-ll to the Court Fees Act, as held by this court in mundargl mahadevappa sons and another v central bank of India (1973 (2) kar. l. j. 432) and kallingrao v faklrappa (1975 (2) kar. l. j. 397 ). l. j. 432) and kallingrao v faklrappa (1975 (2) kar. l. j. 397 ). Support therefor was also sought to be obtained from gopalachandra v bhagwatinand brthmanchari (a. i. r. (49)1962 Madhya Pradesh 279); and (iii) that ad valorem court fee even if is payable on the subject matter of the appeal, the appellant was entitled to get credit under sub-section (2) of Section 32 of the Court Fees Act for the court fee he had paid in his own suit o. s. No. 150/72, on the file of the court of civil judge, mysore, for recovery of the amount due to him on the mortgage of the very properties concerned in the suit under appeal. ( 5 ) SECTION 49 of the Court Fees Act, which bears on the matter in controversy, to the extent it is material, reads :"49. Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -. . . . . . the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal : provided that. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Explanation (1 ). Whetherthe appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the court of first instance. Explanation (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Explanation (3 ). in claims which include the award of interest subsequent to the institution of the suit the interest accrued during the pendency of the suit till the date of decree shall be deemed to be part of the subject matter of the appeal except where such interest is relinquished. Explanation (4 ). . . . . . . Explanation (3 ). in claims which include the award of interest subsequent to the institution of the suit the interest accrued during the pendency of the suit till the date of decree shall be deemed to be part of the subject matter of the appeal except where such interest is relinquished. Explanation (4 ). Where the relief prayed for in the appeal is different from the relief prayed for or refused in the court of first instance, the fee payable in the appeal shall be the fee that would be payable in the court of first instance on the relief prayed for in the appeal. Explanation (5 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "out of the above Provisions requiring payment of court fee respecting appeals, which are those that govern the payment of court fee respecting the present appeal, has now to be seen. The appellant, who was defendant-2 in the suit having been impleaded as a subsequent mortgagee, no doubt, contested the validity of equitable mortgages, on the foot of which the suit for recovery of money was instituted. Yet, relief sought in the suit for recovery of money due on the foot of the equitable mortgages was granted by the court of the civil judge passing a preliminary decree for sale of those mortgage properties. As stated earlier it is that preliminary decree which is now challenged in this appeal by defendant-2 in the suit, who was impleaded as a subsequent mortgagee of the same mortgage properties. Defendant-2 wants the appellate court, the high court, not only to hold that there were no valid equitable mortgages in favour of the plaintiff of the plaint schedule properties, but also annul the preliminary decree made in the suit for recovery of money due on those mortgages. In other words, the present appeal preferred by defendant-2 in the suit is against preliminary decree in the suit granting the relief of recovery of money due under the mortgages. In other words, the present appeal preferred by defendant-2 in the suit is against preliminary decree in the suit granting the relief of recovery of money due under the mortgages. Hence, this is not a case where the relief prayed for in the appeal of defendant-2 is different from the relief prayed for or refused in the court of first instance, as would attract the application of explanation (4) to sec. 49 of the act as was urged on behalf of the appellant on the contrary, the present appeal being one filed by defendant-2 in the suit against a preliminary decree made in that suit granting the relief sought for therein. It is explanation (1) to Section 49 of the Court Fees Act which is squarely attracted as submitted by the learned government advocate, inasmuch as that explanation states that where the appeal is against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the court of first instance. Further, in the preliminary decree under appeal, the interest on the amount claimed in the suit from the date of institution of the suit till the date of decree has since been made payable, explanation (3) to Section 49 is also attracted, in that, it provides that in claims which include the award of interest subsequent to the institution of the suit the interest accrued during the pendency of the suit till the date of decree shall be deemed to be part of the subject matter of the appeal. As seen from the preliminary decree under appeal, to which we have adverted earlier, the relief sought in the court of first instance was respecting Rs. 3,86. 618-11 and interest awarded thereon from the date of the suit till the date of the decree is Rs. 1,97,883-91. The value of the subject matter of the memorandum of appeal preferred against that preliminary decree under explanation (1) and explanation (3) above, therefore, works out to Rs. 5,84,502-02. Consequently, ad valorem court fee payable thereon under Section 49 read witharticla 1 schedule i to the Court Fees Act would be rs- 58,451 00. 1,97,883-91. The value of the subject matter of the memorandum of appeal preferred against that preliminary decree under explanation (1) and explanation (3) above, therefore, works out to Rs. 5,84,502-02. Consequently, ad valorem court fee payable thereon under Section 49 read witharticla 1 schedule i to the Court Fees Act would be rs- 58,451 00. ( 6 ) AS Section 49, its explanations (1) and (3) and article 1 of schedule i to the Court Fees Act, as already held, provide for the amount to be paid by way of court fee on the present memorandum of appeal, the submission of the learned counsel for the appellant that the fixed court fee payable on a memorandum of appeal under article 3 (iii) (1) (a) of schedule ii to the Court Fees Act providing for payment of fixed court fee mentioned therein on a memorandum of appeal, for which no court fee is payable under any provision of the Act, is unsustainable. Further, the decisions relied upon in support of the submission do not bear on the point, as we shall presently point out. In mundargl mahadevsppa v central bank of India (supra), the question was whether the defendants in a suit who were denied in the decree under appeal, to make payment of the decretal amount in instalments, were liable to pay ad valorem court fee when the appeal was preferred respecting non-grant of instalments. A division bench of this court held in that context that the relief of the kind sought in the appeal being one for which there was no specific provision in the Court Fees Act for payment of court fee, fixed court fee was payable under article 3 (iii) (1) (a) of schedule-ll to the Court Fees Act. Thus, this is not a decision which bears on the point. Kallingrao's case (supra) is a c3se where a learned single judge of this court held that a fixed court fee was payable on the memorandum of appeal under article 3 (iii) (1) (a) of schedule-n to the Court Fees Act since it was an appeal against an order of the court below refusing to extend the lime to deposit the money payable under a preliminary decree, which did not attract any specific provision in the Court Fees Act as to the court fee payable thereon. Thus, this is also not a decision which bears on the point. Thus, this is also not a decision which bears on the point. 9. In gopalachandra's case (supra) relied upon by the learned. counsel for the appellant, it is no doubt held following the ruling in panduranga mangel v bhojafu usanna (AIR 1949 nagpur37) and similar rulings of other high courts, thus :"from a perusal of the above rulings, it is clear that the principle is that when the decree is a money decree and when it is passed against the father personally, the son on account of the pious obligation is bound unless it is set aside, and the son in that case has to pay ad valorem court fee. But, when there is a decree on the basis of a mortgage and when there is no personal decree against the father, the son can ask for a mere declaration without being obliged to pay the ad valorem court fee for consequential relief for setting aside the decree. "according to the learned counsel for the appellant in the appeal before us, the appellanta subsequent mortgagee, is asking in the appeal for a declaration that the mortgage decree under appeal is not binding upon him and not seeking the setting aside of the mortgage decree and hence he is not liable to pay ad valorem court fee in appeal as in gopalachandra's case (supra ). The submission of the learned counsel is obviously based on a mis-conception that the appellant can seek in the appeal the relief of mere declaration respecting the mortgage decree overlooking the fact that he is a party to the decree and not a third party to it. The submission of the learned counsel is obviously based on a mis-conception that the appellant can seek in the appeal the relief of mere declaration respecting the mortgage decree overlooking the fact that he is a party to the decree and not a third party to it. This apart, the legal position stated in gopalachandra's case based on the rulings in panduranga mangal's case (supra) and other decisions, can no longer be correct when the Supreme Court, in shamsher singh v rgjinder prashad (AIR 1973 sc2384), has held the ruling in pandu- ranga mangal's case (supra) to be incorrect since it ignores the effect of hindu law in respect of mortgage decree obtained against the father, referring to faqir- chand v satdaml harnam kaur ( AIR 1966 SC 727 ), wherein it is held thus :"it is now well settled that under hindu law if the manager of a joint family is the father and the other members are the sons the father may by incurring a debt so long as it is not for an immoral purpose lay the joint family estate open to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt. "thus, gopalachandra's case (supra) also is not a decision which bears on the point. ( 7 ) WHILE we have said that thedecisions relied upon by the learned counsel for the appellant do not enable him to pay fixed court on the present appeal, the observation of the supreme court in shamsher singh's case (supra) that the court deciding the question of court fee should look into the allegations in the plaint to see to the substance of the relief asked for, calls to be applied to the instant appeal memorandum of the appellant. If so done, what is questioned in the instant appeal in substance is grant of relief of mortgage decree in favour of respondent- plaintiff. If so done, what is questioned in the instant appeal in substance is grant of relief of mortgage decree in favour of respondent- plaintiff. Hence, trie view we have expressed earlier that the substance of the appeal attracts the application of explanations (1) and (3) to Section 49 of the Court Fees Act, receives support from the observation of the supreme court in shamsher singh's case (supra ). ( 8 ) WHAT remains for our consideration is the sustainability of the submissionof the learned counsel for the appellant that credit has to be given for the court fee paid by the appellant on the plaint in o. s. No. 150/72, on the file of the court of civil judge, mysore, having regard to the provision in s. 32 (2) of the Court Fees Act. To decide upon the sustain ability of the submission, it would be advantageous to refer to sub-sections (1) and (2) of Section 32 of the Court Fees Act together. They read: "32. Suits relating to mortgages, (1) in a suit to recover the money due on a mortgage, fee shall be computed on the amount claimed. (2) where, in such a suit, the holder of a prior mortgage or charge is impleaded and he prays in his written statement that the amount due on his mortgage or charge be determined and that the decree contain, a direction for the payment of such amount to him, fee shall be payable on the written statement computed on the amount claimed: provided that, where the holder of the mortgage or charge has paid a fee in any other proceeding on the claim to which his written statement relates, credit shall be given for the fee paid by him in such other proceeding. " from a reading of the said subsections of Section 32, it becomes apparent that when a suit to recover the money due on a mortgage is filed by the mortgagee by impleading therein a prior mortgagee, it would be open to such prior mortgagee to pray in his written statement that the amount due on his mortgage be determined and the decree be made directing the payment of such amount to him, if he pays on the written statement court fee. The proviso to sub-section (2) thereof makes it clear that relief may be given to such prior mortgagee for the amount claimed under the mortgage even if the fee payable on his claim has been paid in some other proceeding, by giving credit to that amount. When we see the case of the appellant, he has been found to be a subsequent mortgagee and he has been impleaded as such. On his own showing, he has the obtained a decree due under the mortgage by filing a separate suit. When the appellant is a subsequent mortgagee and when the decree in the suit of a prior mortgagee provides for payment of the monies due to a subsequent mortgagee out of the amount to be got by the sale of the mortgage property after satisfying the dues payable to the prior mortgagee, the question of giving credit to the amount paid by such subsequent mortgagee for the court fee payable by him on the present memorandum of appeal, does not arise. ( 9 ) FOR the foregoing reasons, wehold that ad valorem court fee is payable by the appellant on his memorandum of appeal on the principal amount of Rs. 3,86,618-11 and the interest amount of Rs. 1,97,883-91 from the date of the suit till the date of the decree under Section 49, its explanations (1) and (3) and article 1 schedule 1 to the Court Fees Act. We grant eight weeks' time to the appellant now substituted by his legal representatives, to pay the ad valorem court fee of Rs. 58,451-00 on the memorandum of appeal, less the court fee of Rs. 200/- already paid thereon. --- *** --- .