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2001 DIGILAW 166 (PAT)

Shankar Prasad Sinha v. Alamgir

2001-02-20

S.N.PATHAK

body2001
JUDGMENT S.N. PATHAK, J.:- This appeal is directed against the order dated 1st March, 1977, passed by the 5th Additional Sub-ordinate Judge, Bhagalpur, in Title Suit No. 71 of 1968 whereby the plaint filed by the plaintiff-appellants before this Court, was rejected on account of not depositing the ad valorem court fee. 2. The facts alleged in the plaint, in short, are that the plaintiff- appellants had filed the aforesaid title suit for redemption of mortgage deed dated 18th April, 1927 as also for a decree for an amount of Rs. 41,000/- (Forty one thousand) by way of damages on account of loss of mortgage property. Recovery of possession was also sought and it was averred, inter alia, among other facts, that the suit property was put to auction sale as a result of a rent decree in favour of Ex-landlord and then the property was purchased by the defendants 2nd and 3rd set of the suit. 3. The lower court directed the plaintiff-appellants to deposit advalorem court fee by order dated 1st February 1977. One month time was allowed to the plaintiff to deposit the deficit court-fee. However, on 1st March, 1977, a petition was filed by the plaintiff-appellants to allow them time to file revision against the order dated 1st February 1977. This prayer was disallowed and the suit was rejected under Order VII Rule 11 C.P.C. So this appeal has been filed against the impugned order rejecting the plaint. 4. It was submitted before me by the appellants' lawyer that in a suit for redemption, the court fee liable to be paid is determined on the value of the mortgage amount which was Rs. 500/-. The court fee is not to be paid on the value of the property sought to be recovered. 5. 4. It was submitted before me by the appellants' lawyer that in a suit for redemption, the court fee liable to be paid is determined on the value of the mortgage amount which was Rs. 500/-. The court fee is not to be paid on the value of the property sought to be recovered. 5. After going deep in the question whether in a suit for redemption, court fee liable to be paid is determined on the basis of the loan amount on the basis of which the property cocerned was mortgaged, I have come to the conclusion that, of course, in a suit for redemption of mortgage simpliciter between the mortgagor and the mortgagee, the court fee liable to be paid is determined on the basis of value of mortgage; but in a suit for redemption as also for recovery of possession not only from the mortgagee but from the 3rd party into whose hands the mortgage property subsequently passes, the court fee liable to be paid depends upon the value of the property to be recovered. Such cases are not purely between the mortgagor and the mortgagee, but also between the mortgagor and the mortgagee and 3rd party to the mortgage. The instant suit was a suit of the nature as stated above. It was a suit for recovery of possession of the property from the defendants 2nd and 3rd set who were allegedly the purchasers. So if the plaintiff would have succeeded in recovering the suit property from the hands of the alleged purchasers, it was not a suit between the mortgagor and the mortgagee simpliciter. Consequent relief to the plaintiff-appellants was apparent, rather in essence, it was also a suit for declaration of subsisting title of the plaintiffs over the suit land which he was seeking recovery from the 3rd hand. The plaintiff-appellants were apparently liable for payment of ad-valorem court fee. The lower court, therefore, rightly directed to pay the advalorem court fee by order passed on 1st February, 1977. The plaintiff-appellants waited almost for one month to comply with the order of the lower court and then came with a prayer that they be granted time to file revision against the order dated 1st February 1977. The court rejected this prayer on the ground that only 15 days time is to be allowed to go in revision etc. The plaintiff-appellants waited almost for one month to comply with the order of the lower court and then came with a prayer that they be granted time to file revision against the order dated 1st February 1977. The court rejected this prayer on the ground that only 15 days time is to be allowed to go in revision etc. Whatever may be the position, it is apparent that this appeal has been filed against the order dated 1st March 1977 and so this appeal has to be disposed of on its own merit. 6. Section 2(2) C.P.C. has clearly mentioned that rejection of a plaint shall be deemed to be a decree. So when the plaint of the appellants was rejected under Order 7 Rule 11 C.P.C., this rejection order was a decree and the appeal lay against this order. This appeal has to be decided as a general appeal as the appeal lay against this impugned order. This appeal has to be decided as a general appeal and the impugned order has to• be judged on its own merit. In this connection, it has also been pointed out that the appellants had filed a revision against the order dated 1st February 1977 and in this revision, an order was passed on 13th January 1983 that the rationale of the order directing payment of advalorem court fee shall be decided in the appeal which was, in the mean time, already filed. The aforesaid order passed in Civil Revision No. 411 of 1977 has been filed by the appellants. 7. I have already observed above, upon discussion of the legal aspect of the case, that the plaintiff-appellants were liable to pay ad valorem court fee on the valuation of the suit property. Hence, I do not think that the impugned order rejecting the plaint under Order VII Rule 11 C.P.C. in default of payment of ad-valorem court fee, was illegal or improper. 8. Hence, I am of the opinion that this appeal is not sustainable. In the result, this appeal is dismissed. 9. In the circumstances of tile case, there will be no order as to cost of this appeal.