SAILENDRA KUMAR PALIT Vs. HARI CHARAN SADHUKHAN

JUDGEMENT

(1.) Of the objections that have been taken as regards the maintainability of this appeal the one that we are concerned with at this stage relates to its competency as lying in this Court as its forum.

(2.) The appeal is from an order passed in proceedings relating to the execution of a decree in a mortgage suit for sale. The claim at the date of the suit was laid at Rs. 4,477-2-0. That was the amount of claim stated in the plaint which however contained prayers for interest pendente lite and costs, etc. The preliminary decree for sale was for Rs. 6,357-7-0. The question is whether from an order passed in execution of such a decree an appeal lies to this Court.

(3.) There can be no question that if the value of the original suit in this case was less than Rs. 5,000 the present appeal would lie to the District Judge under Section 20 (1) (a), Bengal, N. W. P. and Assam Civil Courts Act 12 of 1887. It has however been contended on behalf of the appellant that though in the plaint only Rs. 4,477-2-0 was stated on the footing of the amount that was then due on the mortgage, the real claim was to get all that would be due up to the date of the decree. In other words it has been maintained that the value of the claim was only tentatively put down in the plaint because it was not possible for the plaintiff to know when the decree would be passed and what further amount would be due on the mortgage by that date. It has been contended that when the decree was passed it was found that Rs. 6,357-7-0 had become due to the plaintiff on the mortgage, and so, that should be taken as the real value of the claim, and consequently under Section 20 (1) (b), Bengal, N. W. P. and Assam Civil Courts Act 12 of 1887, the appeal would lie to this Court and not to the District Judge.