KANHIYUR MANAKKAL MURTHI KHANDAN NAMBUDRIPAD S SON NEELAKANTAN NAMBUDRIPAD STYLED MURTHI KHANDAN Vs. TIRUNILAI GRAMOM ANANTANARAYANA PATTAR

JUDGEMENT

(1.) A preliminary objection has been taken that the appeal lies to the District Court and not to this Court. We are unable to admit this objection. The claim in the present case is, in the alternative, first for redemption of a mortgage, the principal amount secured whereby is Rs. 3,000, and in the event of that failing, secondly, to recover from the defendants various sums aggregating more than Rs. 2,000, on the footing of a mortgage to be executed by the plaintiff to the defendants in accordance with certain provisions contained in the earlier mortgage. The decisions in Motigavri V/s. Pranajivan Das I.L.R. 6 B. 302 and Kashnath Narayana V/s. Govinda Bin Piraji I.L.R. 15 B. 82 hold that Section 17 of the Court Fees Act applies only to cases where cumulative reliefs are claimed. A contrary view appears to have been taken by the Punjab Chief Court, though the actual language employed by the Court is not before us. (See page 104, Jagannatha Aiyar's Court Fees Act). Section 17 of the Court Fees Act says merely that "where a suit embraces two or more distinct subjects, the plaint or memorandum of: appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeals in suits embracing separately each of such subjects would be liable under this Act." We see nothing in the language to warrant "the operation of the section being confined to cases in which the reliefs are cumulative.

(2.) No doubt the second paragraph of the section referring to paragraph 2 of Section 45, Civil Procedure Code, refers to cases, where prima facie the relief sought, is cumulative, but the general words of the first paragraph of the section cannot be limited to the class of cases dealt with by the second paragraph which was introduced ex majore eautela in order to prevent the first paragraph being construed as intended to restrict the power of the Courts in regard to joinder of causes of action.

(3.) The phrase "two or more distinct subjects" in Section 17 may e not admit of precise definition applicable to all cases, and it may0 be,, that where reliefs are claimed in the alternative with reference to the same causes of action, Section 17 would not govern the case. That may also be so when the relief claimed is one and the same though the claim is sought to be made out on distinct or alternative grounds. It is, however, different in the present case. The claim for redemption is based upon the alleged right of the plaintiff as mortgagor, while the alternative relief is based on a contract for a further mortgage which is distinct from the earlier mortgage right, though both are evidenced by the same, instrument. The alternative claims are therefore distinct matters which could, have been made the grounds of separate suits and it would, therefore, seem to be reasonable to hold that they are "distinct subjects" within the meaning of Section 17. It follows, therefore, that the value of the suit for purposes of Court fees is more than Rs. 5,000, and, consequently also for purposes of jurisdiction.