TAMMANA TATAYYA Vs. MADDI KUTUMBA RAO

JUDGEMENT

(1.) The above appeals which involve a determination of proper court-fee payable on the Memorandum of first appeal, arises in the following circumstances.

(2.) The respondent in the above two letters Patent Appeal filed a suit in O.S. 36/63 in the Court of Subordinate Judge, Gudivada against the above appellants for recovery of a sum or Rs.15,000. The plaintiff alleged that he purchased the property at a Court auction on 1-7-1957 and that he was deprived of possession of the property and of enjoying the profits thereof. by the defendants having taken proceedings to get the sale set aside and thereby delaying the confirmation of the sale until 4-3-1963. The suit was contested on the ground that the plaintiff is not entitled to profits till the confirmation of the sale, and that the suit is barred by limitation etc. That trial Court. while holding that the plaintiff is entitled to profits and 1-7-1957 to 17-6-1963 did not determine the quantum of the profits but directed the same to be decided on a separate application and accordingly passed a preliminary decree for mesne profits against the above appellants. In the suit, be plaintiff valued the profits tentatively as Rs.15,000.00 for purpose of court-fees as well as jurisdiction and paid ad valorem court-fees of Rs. 1,086 thereon. Against the preliminary decree. the above appellants (defendants) filed appeal No. 259/64 in this Court valuing the appeal at Rs.15,000.00 as in the trial Court but as no decree for mesne profits was passed for any specified amount they paid a fixed court-fee of Rs. 300.00 according to Section 47 of the Andhra Court-fees Act. Pending appeal No. 259/64, the plaintiffs respondents filed a petition C.M.P. 4095/68 in this Court calling upon the appellants to pay advalorem court-fees as in the trial court and to dismiss the appeal if they do not pay Court-fees accordingly. The appellants while opposing the application filed another petition C.M.P. 4227/68 alleging that no court-fees at all is payable on the memorandum of appeal except Rs. 2.00 as on a petition to the High Court and accordingly payed for a refund of the excess court-fee paid by them. These two applications were disposed of by our learned brother Vaidya, J., on 19-3-1968 allowing the application of the respondent and directing the appellants to pay ad valorem court-fees as in the trial Court. Consequently the application for refund filed by the appellants was rejected and two months time was given for them to pay the deficit court-fee. The learned solely to profits the appeal against the preliminary decree directing enquiry into the quantum of the profits should be regarded as a claim for a declaration that the respondent is not entitled to profits. Hence the learned Judge was of the opinion that though the amount is not ascertained the defendants should pay the same court-fees a in the trial Court. Against the above order, the appellants filed these appeals under Clause 15 of the Letters Patent.

(3.) In these appeals, the question for consideration is whether the court fee paid on the Memorandum of Appeal in A.S. No. 259/64 is correct. The view constantly taken by the Madras High Court under the Madras Court-fees Act a party files an appeal challenging the mere direction to ascertain the mesne profits. In Kandunni Nair v. Itunni Raman Raman Nair, AIR 1930 Mad 597. A Division Bench of the Madras High Court observed as follows: