SHANKAR BAKHSH SINGH Vs. RAGHUBIR PRASAD

JUDGEMENT

(1.) The Taxing Officer is of opinion that there was a deficiency of Rs. 63 in the court fee paid by the defendants on the memorandum of objections, presented by them to the lower appellate court. The defendants do not accept his view. The case is not covered by Section 5 of the Court Fees Act, therefore the decision of the Taxing Officer is not final, and the question must be decided by the Bench which hears the appeal. 1. The facts are as follows:

(2.) The suit was for the recovery of Rs. 150 principal, and Rs. 1,680 interest, total Rs. 1,830, on foot of a simple mortgage. The Subordinate Judge held that the plaintiff was entitled to Rs. 632-12-11, on account of principal and interest at the date of the suit, and he passed a decree for that amount with interest for six months at the contract rate, and thereafter till realization at the rate of six per cent, per annum. His decree, dated the 29th of April, 1911, which was prepared In the usual form, declared that Rs. 988-3-8 would be due to the plaintiff, on the 19th of October, 1911, on account of principal and interest on the mortgage in suit. We omit the rest of the decree, as it is immaterial at present. On the 2nd of June, 1911, the plaintiff appealed on a point which does not now concern us, and on the 25th of July, 1911, the defendants filed objections under order XLI, Rule 22, asking that the suit should be dismissed. They paid a court fee upon Rs. 150, the amount of the principal sum secured by the mortgage. The fee paid was certainly insufficient, but the question is on what amount it should have been paid, The Taxing Officer of this Court holds that they should have paid court fees on Rs. 988-3-8. His view is supported by the decision of Tudball and Rafiq, JJ. in Baldeo Singh v. Kalka Prasad (1913) I.L.R. 85 All 94. and we are informed, by decisions of former Taxing Judges of this Court. As at present advised we are unable to accept these decisions. According to article 1 of schedule I to the Court Fees Act, the court fee payable on objections, filed under order XLI, Rule 22, is to be calculated according to the amount or value of the subject-matter in dispute. There appears to us to be no justification for the hard and fast rule, which seems to have obtained in this Court, that a mortgagor who, in a memorandum of appeal or objections, contends that a preliminary decree for sale, passed against him, should be set aside in toto, should pay court fees on the amount declared to be due on the date fixed in the decree. An appeal or objection may be, and often is, filed before the day fixed in the decree. That was the case here. The amount payable by the defendants for redemption of the mortgage on the day when they filed their objections was less than the amount declared in the decree. A mortgagor is entitled to redeem his property before the day fixed in tie decree, and if he does so, he is not bound to pay the amount declared in the decree. He may redeem on payment of the principal and interest due on the day on which he pays the money. On the other hand, a court passing a preliminary decree for sale is not bound to allow six months for payment. It may, and often does, allow a much shorter time, and in such a case the appeal or the objections may be filed after the date fixed in the decree. In neither of the cases which we have instanced can there, in our opinion, be any justification for requiring court fees to be paid on the amount declared in the decree. The rule hitherto observed is, no doubt a convenient one for the Taxing Officer s department, but it appears to rest upon no principle, and we understand that it has been challenged on many occasions and that it does not obtain in any other High Court. The High Court of Bombay appears to disregard all interest accruing after the date of a suit on a mortgage so far as court fees are concerned. Where a mortgagor by appeal or objection challenges part only of a preliminary decree for sale, the practice is to require him to pay court fees on the amount which he says should be struck out of the decree, and in ascertaining the value of the subject matter of the appeal no attention is paid to the date fixed in the preliminary decree.

(3.) We think that the present state of affairs is unsatisfactory and we direct that this case be laid before the Chief Justice in order that he may consider the propriety of appointing a larger Bench to hear this appeal.