T G GOPAL PILLAI Vs. VISWANATHA IYAR

JUDGEMENT

(1.) Mr. N. R. Govindachari, learned advocate for the petitioner argues that the court-fee paid is sufficient and the lower appellate Court was not justified in calling upon his client to pay extra court-fee. The suit by the plaintiff, the appellant in the lower appellate Court, was for possession and there was an alternative prayer for redemption of a mortgage. The lower Court passed a decree that he was entitled to possession, but that he was bound to redeem a pre-existing mortgage on the property and found that the amount payable was somewhere about Rs. 18000. The decree therefore was conditional on his payment of Rs. 18000 and odd. It is against this that this appeal was filed. He paid court-fee on the basis of a suit for possession valuing the properties at Rs. 3000 and with regard to the alternative prayer for right of redemption he valued at 1/3 of the principal amount due which came to about Rs. 1600. He paid court-fee on the higher figure. The lower appellate Court however took the view that he should pay court-fee on Rs. 18000, the payment of which was the condition for his obtaining possession.

(2.) Reliance was placed upon the decision in 'Sekharan v. Eacharan', 20 Mad L Jour 121. I find, however, that that very judgment at page 128 says that even in the case of an appeal, in suits for redemption if the right to redeem is not the subject matter of dispute in appeal taut only the amount which is being disputed in appeal, when court-fee will have to be paid on the 'ad valorem' scale. That follows the decision in 'Reference under Court-fees Act, 1870, 29 Mad 367'. In this case if the appeal is looked at merely as an appeal against a decree for possession conditional on the payment of Rs. 18000 and the appeal is to get rid of the liability for the payment of Rs. 18000, then according to the decision in 'In re Porkodi Achi', 45 Mad 246 court-fee will have to be paid on the 'ad valorem' scale with reference to the amount which is being disputed. But even on the footing that this matter arises in respect of a suit for redemption, as the right to redeem is being asserted by the plaintiff and is not being disputed by the defendant, and the subject-matter of the appeal is only, with reference to the amount, even accord-ing to the decision in 'Sekharan v. Eacharan', 20 Mad L Jour 121 it would follow that court-fee will be payable on the 'ad valorem' scale on the amount disputed. Prom every point of view the order of the lower appellate Court is right.

(3.) The petition is dismissed with the costs of the Government.