VITHOBA Vs. RAMJI

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The non-applicant had filed a suit for redemption of a mortgage, of which the principal sum was Rs. 2,400 and which was executed on 27th April 1907. The trial Court passed a decree directing the applicant to pay the sum of Rs. 35,918-5-6 to the non-applicant and to retransfer the property, holding that the claim on the mortgage had been more than satisfied. The applicant preferred an appeal to the District Judge, Wardha, but valued his appeal only at Rs. 2,400, the principal sum of the mortgage, and paid court-fees on that amount. At the hearing of the appeal the respondent's Counsel raised an objection that the memorandum of appeal was insufficiently stamped and that court-fees should have been paid ad valorem. After heiring the parties the District Judge found that court-fees should have been paid ad valorem on the amount of the decree. Against that order the present application has been filed. It seems to me clear that there is no force in the application and that the order of the lower appellate Court is correct. The general rule governing appeals is that court-fees must be paid on the amount by which the appellant wishes to reduce or enhance the decree. If the appeal is merely for reversing the decree of the trial Court and no question of accounting arises, then the court-fees payable in appeal should be the same as the court-fee payable on the plaint in the suit. In the present case, if the contention was merely that the non-applicant had no right to redeem and no question of accounting was raised, then the court-fee could have been paid on the principal amount of the mortgage, viz., Rs. 2,400 but it is quite clear that the chief contest in the present case is the amount to be paid by the applicant. The finding of the trial Court is that the mortgage has been much more than satisfied and that a very large sum is due by the applicant to the non-applicant. It may be seen from grounds Nos. 9 and 13 in the memorandum of appeal to the lower appellate Court that the amount decreed by the trial Court is challenged. It is true that the applicant has not stated what amount, if any, he admits to be due, or what amount, if any, he claims to recover from the non-applicant as the price of redemption, probably with a view that he should not be held to have valued his appeal and be made to pay court-fees on the amount so stated. He cannot however escape paying ad valorem court-fees by such a method, and, as it is clear that he is trying to reduce the amount of the decree and has not stated by what amount he wishes to reduce it, he must, I think, pay ad valorem court-fees on the whole decretal amount.

(2.) THE learned Counsel for the applicant has relied on Dhiraj Singh v. Rajaram 1910 6 N.L.R. 164, where it was held that the general purpose of Section 7, Court-fees Act, was to lay down a value that should remain unchanged in all stages of the case, and that valuation would continue up to the appeal. At the same time it has not been laid down in the case that, where in the appeal a separate relief is claimed, namely, a reduction of the amount decreed in the suit, court-fees are to be paid on the memorandum of appeal only as paid in the suit; and at p. 167 there is a remark to show, that, if the amount found payable for redemption had been in dispute, then court-fees would be payable upon such amount. Further that case has been considered by a Bench of this Court in Wasudeo v. Dayaram 1915 11 N.L.R. 83, where it has been expressly held that, where an appellant claimed enhancement of the amount decreed in a mortgage suit, court-fee payable in appeal was ad valorem according to the amount of enhancement sought. At the bottom of p. 84 there is an express reference to Dhiraj Singh v. Rajaram 1910 6 N.L.R. 164 and the following has been recorded:

(3.) THE application is therefore dismissed with costs. I fix pleader's fees at Rs. 50.