B NEMICHAND SOWCAR Vs. NNAMBERUMAL CHETTY

JUDGEMENT

(1.) The question raised is whether the view of the learned City Civil Judge that the proper Court-fee has been paid on the plaint, is right. It is assumed by the judge, and is conceded here, that if the valuation for the purpose of court-fee is determined, the same valuation has to be adopted for the purpose of jurisdiction. The material facts may be briefly stated. On the 28 June, 1928 the second defendant granted a mortgage for Rs. 4,000, in favour of the first, over two items of his properties. Thereafter, the former filed against the latter C.S. No. 488 of 1928 on the file of the High Court, contending that the mortgage was not fully supported by consideration. In September, 1932 a decree was passed in that suit, granting redemption on payment of Rs. 1,375 and interest thereupon. During the pendency of the appeal that had been filed from that decree (O.S.A. No. 93 of 1932), the second defendant in February, 1933 mortgaged certain properties including the two items already referred to, in favour of the plaintiff for Rs. 12,500, and subsequently in June, 1933 agreed to convey to him one of the two items aforesaid for Rs. 12,000. The plaintiff then goes on to allege, that in July, 1933 there was a tripartite agreement between himself and the first and second defendants, by which the amount due under the mortgage of 1928 was fixed at Rs. 1,850, the sum allowed by the redemption decree, as already stated, being Rs. 1,375. Two days later, contrary to this arrangement, the plaintiff complains that the first and second defendants allowed by consent a decree to be passed for Rs. 4,000, in O.S.A. No. 93 of 1932. The plaintiff has brought the present suit praying (i) that it may be declared that the consent decree is not binding upon him and (ii) that the property may be directed to be delivered to him on payment of Rs. 1,850.

(2.) For the defence Mr. Narasimha Aiyar contends that Section 7(ix) of the Court Fees Act applies, as the suit is in effect one to redeem the property; under that clause, the valuation of suits for redemption is according to the principal money expressed to be secured by the instrument of mortgage. The plaintiff has paid court-fee in respect of Rs. 2,150, (Rs. 4,000, minus Rs. 1,850); the defendants contention is that court-fee should be paid on the full amount of Rs. 4,000. That contention cannot, in my opinion, prevail. A redemption decree had already been passed and it would be unreasonable therefore to hold that the plaintiff was bound to institute a second redemption suit. The object of the action is to get rid of the consent decree and the provision that is directly applicable in Section 7(iv-A) of the Court Fees Act, which (the unnecessary portions being omitted) reads thus: In a suit for cancellation of a decree for money according to the value of the subject-matter of the suit and such value shall be deemed to be, if the whole decree is sought to be cancelled, the amount for which the decree was passed; if a part of the decree is sought to be cancelled, such part of the amount.

(3.) In the present case, the decree sought to be cancelled is in respect of the excess over the agreed amount of Rs. 1,850, and that excess is Rs. 2,150. The relief as to possession is consequential upon the declaration. I must therefore hold that the proper court-fee has been paid.