SM KAUSALYA DEBI Vs. KAULESHWAR SINGH

JUDGEMENT

(1.) This matter has been referred to me as Taxing Judge under Section 5, Court- fees Act. It arises out of an appeal from a final decree in a mortgage suit in which the appellants were defendants. They have filed the appeal without any court-fee on the ground that nothing more is payable in view of the fact that full ad valorem court-fees were paid on the appeal from the preliminary decree. In the appeal from the preliminary decree, all they succeeded in obtaining was a reduction of interest. In the present appeal the entire final decree is attacked. Under Section 97, Civil P.C. which was introduced in 1908, where any party aggrieved by a preliminary decree does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Therefore, under the law as it now stands, a party is forced to appeal from the preliminary decree, and cannot wait to attack it in a single appeal after and from a final decree. Clearly a party cannot attack the final decree upon grounds which he has urged unsuccessfully in the appeal against the preliminary decree. But, in the present case, an attack is made upon the whole final decree upon new grounds, by reason of things alleged to have happened between the preliminary decree and the final decree, namely, failure to make substitution upon the death of a party, leading to an alleged abatement, and the alleged presentation of the application for final decree to a wrong Court. The argument put forward for the appellants is that the law never contemplated that ad valorem court-fees should be paid twice over. Therefore, no court-fee at all need be paid. Secondly, if any court-fee is payable, it can only be on the difference between the valuation of the preliminary appeal and the final appeal, the sum due having of course increased in the interval owing to the accumulation of interest. It has further been argued on behalf of the appellants, but not very strenuously, that the appeal should be treated as an appeal from an order, and so court-fees, if payable, should be the fixed court-fees payable under Schedule II, Art. 11, Court-fees Act, upon a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. In the alternative, court-fees should be assessed under Schedule II, Art. 17(vi) as upon a memorandum of appeal where it is not possible to estimate at a money value the subject-matter in dispute, which is not otherwise provided for in the Court-fees Act.

(2.) The last two points may be dealt with very briefly. There is no difficulty at all in estimating at a money value the subject-matter in dispute in the appeal. As the appeal attacks the entire decree and asserts that no final decree can be passed, the value to the appellants is the amount of the final decree. The case which is relied upon Durga Prasad V/s. Sri Niwas Surekha A.I.R. 1934 Pat. 473 even if correct, which has been doubted, has no application. It was a case where the only point in dispute was whether there should be a decree for sale, or for foreclosure, and the learned Taxing Judge took the view that the difference could hot be estimated in money.

(3.) As to the contention that the appeal is from an order not having the force of a decree, this cannot be entertained for one moment. Section 2, Civil P.C., expressly provides that a decree may be either preliminary or final, and the test of a final decree is whether it is an adjudication completely disposing of the suit. Section 97, moreover, makes it quite clear that there can be separate appeals both from the preliminary decree and from the final decree. The contention has been based merely upon a single case, Ranga Raju V/s. Ethirajammal A.I.R. 1930 Mad. 20, which has been subsequently dissented from even in the Madras High Court, in Ramchandra Rao V/s. Rattayya A.I.R. 1934 Mad. 198, and is not in accord with the view of any of the other High Courts. The point is so well-settled and there are so many decisions that it is not necessary to cite them. I shall refer to only one, the Full Bench case of the Allahabad High Court, Bajrangi Lal V/s. Mahabir Kunwar (13) 35 All. 476 where it was pointed out that the Legislature had deliberately altered the words "order absolute" and replaced them by the words "final decree", and it was laid down that an appeal from a final decree passed under Order 34, Rule 5, Civil P.C., requires an ad valorem court-fee, and cannot be stamped as an appeal from an order.