GOVINDA Vs. BANSILAL

JUDGEMENT

(1.) IN a suit for redemption filed by the appellant, the first Court granted a decree for redemption fixing a certain amount as the price of redemption. Against that decree plaintiff appealed and prayed that the mortgage be declared as fully satisfied. In short he disputed the right of the mortgagee respondent to treat the mortgage as still subsisting and to demand any amount as due under the mortgage. He accordingly paid Court-fee on the principal sum. The respondents objected to the sufficiency of Court-fee paid on the memorandum of appeal. The District Judge upheld the contention and called upon the plaintiff appellant to pay ad valorem fee on the price of redemption fixed from payment whereof he claimed to be exonerated. The appellant got a fortnight's adjournment to apply for leave to appeal as a pauper. At the adjourned hearing he found that there was difficulty in the way of obtaining leave to appeal as a pauper on questions of fact, and prayed for time-to pay the deficiency. This was refused and the memorandum of appeal was rejected under Order 7, Rule 11, read with Section 107 Civil P.C. It is against) this order refusing to grant time and rejecting the memorandum of first appeal that the present appeal has been filed on a stamp of Rs. 2 only. The office raised two questions (i) whether this memorandum should be registered as a second appeal and (ii) whether it is properly stamped.

(2.) IT has been held in this Court in Gabba v. Kanchhedilal A.I.R. 1922 Nag. 62 that an order in effect dismissing an appeal for deficiency in Court-fee should be treated as on the same footing with rejection of a plaint for the purposes of determining whether it amounts to a decree or not. The second appeal filed in that case was held competent in that view. I may observe here that the dismissal of the appeal, under such circumstances raised a question of law as to the interpretation of the Court Pees Act and as such a second appeal will lie. It follows that the order under appeal before me is appealable as a decree and the memorandum of appeal filed in this Court is hereby ordered to be registered as a memorandum of second appeal.

(3.) IN the case of Gabba v. Kanchhedilal A.I.R. 1922 Nag. 62 the Court fee paid on the memorandum of second appeal was Rs. 2 only. No objection was, however, raised there as to the sufficiency or otherwise of stamp on the memorandum of second appeal and hence no decision was given there. In the absence of such a decision the Court fee paid there affords no criterion for a decision of the point raised before me.