SUKUMARAN NAIR Vs. RAGHAVAN NAIR

JUDGEMENT

(1.) The point for determination in this Civil Revision Petition is whether in an appeal from a decree for redemption on payment of value of improvements to the defendant, where the appellant defendant challenges bona fide both the right of redemption and the amount of value of improvements, court fee should be paid on the principal sum secured by the mortgage as well as upon the amount which the appellant seeks to enhance the sum decreed as value of improvements, when such amount exceeded the principal sum secured by the mortgage.

(2.) The above question was raised in the lower appellate court to which the defendant appellant filed the appeal against the decree for redemption on payment of value of improvements to the petitioner. The petitioner was in possession of the plaint schedule property under a mortgage. While so, the suit was instituted by the respondent for redemption and recovery of possession of the suit property. The amount of the mortgage secured by the mortgage deed was Rs. 500/-. The Trial Court passed a decree for redemption on payment of the said sum of the mortgage amount and also on payment of Rs. 15,714.06 as value of improvements. Against that judgment and decree, the petitioner filed the appeal in the lower appellate court questioning the right of redemption as well as making a claim for enhanced value of improvements. In doing so, the petitioner paid court fee on the mortgage amount and he had also paid court fee as if to set aside the commissioner's report valuing the same under S.50 of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960), which will hereinafter be referred to as the present Act. In the Trial Court, the respondent had paid court fee only on the mortgage amount. However, when the appeal was filed there was an office note to the effect that the court fee paid under S.50 was not correct, and that the appeal being in the Sub Court, a court fee of Rs. 100/- should be paid on the enhanced value of improvements. This office note was not considered by the lower appellate court as it is evidenced by a later order dated 1-8-67 to the effect that the question of court fee would be considered along with the appeal. (This is a wrong procedure). But, when the court fee Examiner checked the records, he found that the court fee paid under S.50 was not correct and that the full amount of Rs. 100/- under S.50 should be paid on the memorandum of appeal towards enhanced amount of the value of improvements in addition to the court fee which was paid on the mortgage amount. The lower appellate court considered this question on the basis of the court fee Examiner's check slip on 30-11-1967 and directed the petitioner to pay the additional court fee as required by S.50 of the Act. But, later on 4th March 1970 after the appeal was heard, again the lower appellate court suo motu reopened the court fee question and stated that the court fee shall be paid on an ad valorem basis on the entire amount of the enhanced value of improvements which the petitioner claimed in the appeal. It is the said order which is impugned in this revision petition.

(3.) Two questions have been argued in this case. One question is that when both the right of redemption and claim for improvements were disputed in appeal, the court fee need be paid only on the amount of the mortgage secured by the mortgage deed and that no separate court fee shall be payable on the value of improvements in appeal. The next point argued was that once there was a decision by a court, whether it is in appeal or in the suit, under S.18(2) of the present Act, the court is precluded from considering the question of court fee again either suo motu or at the instance of the parties. The first question requires a detailed consideration. It may be noted that the existing law on this aspect of the question was based upon the provisions of the Travancore Cochin Court fees Act, 1125, or the Central Court fees Act, 1870. The relevant section in the Travancore-Cochin Court Fees Act, is S.3(9) while the relevant section in the Central Act is S.7(ix). S.3(ix) reads as follows: