KEDAR NATH GOENKA Vs. CHANDRA MAULESHWAR PRASAD SINGH

JUDGEMENT

(1.) This matter comes before us on a reference by the Registrar under the following circumstances: It appears that a suit was instituted by the proprietor of Mahal Bistahazari in the District of Monghyr and the reliefs asked for in the plaint were to set aside the revenue sale of the mahal, to recover possession from the auction-purchasers at the revenue sale and for recovery of mesne profits for the period up to the date of suit and also for futue mesne profits up to the date of delivery of possession. This suit was ultimately decreed by the Privy Council.

(2.) Two applications were then made for delivery of possession, one by the Maharaja of Gidhour and the other by Maharaj Kumar Babu Bageshwari Prosad Singh and others. Possession was delivered to them over the properties in which they were interested out of the various villages comprised within Mahal Bisthazari. Thereafter two separate applications were made by the Maharaja of Gidhour and Maharaj Kumar Babu Bageshwari Prosad Singh for ascertainment of future mesne profits from the date of suit up to the date of delivery of possession.. The Maharaja in his application claimed a sum of Rs. 1,01,591, odd and Maharaj Kumar Bageshwari Prosad Singh claimed a sum of Rupees 3,85,000 odd as mesne profits. Upon their applications for ascertainment of mesne profits they paid ad valorem court-fee calculated on the amount claimed by them as mesne profits.

(3.) The Subordinate Judge, after a prolonged inquiry, made decrees for mesne profits, awarding Rs. 41,803 odd to the Maharaja and Rs. 57,452 odd to Kumar Bageshwari Prosad Singh. Four appeals were preferred against the decrees made by the Subordinate Judge. The judgment-debtor Babu Kedar Nath Goenka filed Appeal No. 28 of 1928 against the Maharaja valuing his appeal at the sum of Rupees 41,803 odd, namely the amount decreed against him. The Maharaja filed Appeal No. 33 of 1928 against Babu Kedar Nath Goenka claiming Rs. 52,000 odd as the amount to which he was entitled to over and above the amount decreed in his favour by the Subordinate Judge. Babu Kedar Nath Goenka preferred Appeal No. 29 of 1928 against Maharaja Kumar Babu Bageshwari Prosad Singh valuing his appeal at Rs. 57,452, that is, the entire amount decreed against him in favour of the Maharaj Kumar, and Maharaj Kumar Babu Bageshwari Prosad Singh preferred Appeal No. 32 of 1928 claiming a further sum of Rs. 54,000 over and above the amount decreed in his favour by the Subordinate Judge. The memorandum of appeal in each one of these four appeals was stamped with a court-fee stamp of Rs. 4 only. The appeals came on for hearing in due course and we pronounced our judgment in the appeals on the 13 August 1931. We dismissed Appeal No. 33 entirely and we allowed the other three appeals partially. When the stage came for the preparation of the decree, the officer of the Court in charge of the preparation of the decree discovered that the memorandum of appeal in each case had been insufficiently stamped. He made a reference to the Registrar and the Registrar was of opinion that the court-fee payable on the memorandum of appeal was ad valorem upon the value of the subject-matter in dispute in the appeal. He thereupon called upon the parties to pay the deficit court-fee and directed that until the deficit court-fee was paid, the decree in the four appeals shall not be drawn up. The parties appeared and contested the jurisdiction of the Registrar to call upon them to pay additional court-fee at this stage. They further contended that the memorandum of appeal in each case had been properly stamped. The Registrar has dealt with this case in a dual capacity. As Registrar he has refused to draw up the decree so long as the deficit court-fee was not paid. As taxing officer purporting to act under Section 5, Court-fees Act, he has held that the proper court-fee payable on the memorandum of appeal in each case was ad valorem upon the value of the claim of the appellants in each case. As the parties refused to pay the court-fee the matter has now been referred to us for final orders.