THAKAN CHAUDHURI Vs. LACHMI NARAIN

JUDGEMENT

(1.) The respondent instituted a suit on a mortgage bond claiming interest up to the date of suit valuing the suit at the amount, principal and interest, calculated as due at the date of institution, and paying court-fee on this amount. The suit was decreed for this amount with further interest which accrued pendente lite. The decretal amount was in due course realized from the judgment-debtors in execution proceedings, after which the execution case was struck off with a note of full satisfaction. When the decree-holder desired to withdraw the amount which had been realized, he was required by the Subordinate Judge to pay an additional sum of Rs. 210, as court-fee on the amount of interest which had accrued from the date of suit to the date of the decree. The decree-holder paid the court-fee, and then instituted further execution proceedings against the judgment-debtors to recover from them these additional costs incurred in the suit. The judgment- debtors protested.

(2.) The Subordinate Judge before whom the objection came was of opinion that the order calling upon the decree-holder to pay additional court-fee was bad in law; but as an order had been made by his predecessor by which the decree- holder was entitled to realize the value of this court-fee from the judgment- debtors, he considered that the execution must proceed, and the order must be enforced. The judgment-debtors appealed to this Court. The appeal came before a Division Bench, but as there was some conflict of decisions in this Court on the question which had to be determined, the appeal has been referred to a larger Bench,

(3.) It appears that in Muzaffarpur there is a standing order of the District Judge that additional court-fee must be exacted for interest accruing pendente lite decreed in mortgage suits before execution is taken out or before the decree- holder is permitted to withdraw the amount realized in execution. This procedure is apparently based on the decision in Jamuna Rai V/s. Ramtahal Raut 1922 Pat 387, wherein the late Sir Jwala Prasad remarked that a plaintiff decree-holder seeking to enforce a decree directing payment of future interest is bound to pay the court- fee upon the interest claimed by him in execution for which no court-fee was paid in the suit, Sir Jwala Prasad remarked: There can hardly be any doubt that a mortgagee seeking to enforce the mortgage and praying to recover the amount due thereunder has to pay court-fee not only upon the sum decreed but also upon the interest that becomes due to him subsequent to the decree and which he claims in the execution. This was the ground upon which the decision was based, though the Judges in that case were dealing with the question of the court-fee payable on a memorandum of appeal. As authority for this proposition Sir Jwala Prasad relied upon the decision in Percival V/s. Collector of Chittagong (1903) 30 Cal 516.