TARAK NATH ROY Vs. PANCHANAN BANERJEE

JUDGEMENT

(1.) The question raised in this revision case relates to the amount of court-fees that are payable on a memorandum of appeal filed against an order passed in a proceeding for restitution under Section 144, Civil P.C. The facts shortly stated are these: In the year 1913, when the present petitioner was a minor, there was a mortgage suit started against him by one Rama Nath Banerjee, predecessor of opposite parties 1 to 3, on a mortgage bond alleged to be executed by the petitioner's father. The petitioner was represented by his mother, who was an illiterate lady and could not look to his interest properly, and a decree was passed in this mortgage suit which was based on an award made by an arbitrator, who was no other than a brother of the said mortgagee, Ramanath. In execution of this mortgage decree all the properties of the petitioner were gradually sold and purchased by the decree-holder except the properties described in schedule (gha), but Rama Nath took forcible possession of this property as well.

(2.) After the petitioner attained majority he instituted a suit in the year 1928, against opposite parties 1 to 4, the first three defendants being the sons and heirs of Rama Nath, and the fourth an alienee from Rama Nath of the (gha) schedule property, for recovery of possession of all these properties, on a declaration that the mortgagee decree and the ex-sale consequent thereon were fraudulent and void. This suit culminated in a decree in favour of the petitioner on 31 July 1931, which was subsequently affirmed in appeal. The petitioner in execution of his decree got back possession of all the properties on 20 August 1931. It may be said here that though there was a prayer for delivery of possession in the suit instituted by the petitioner, he did not make any prayer for recovery of mesne profits, the rights being reserved for another litigation. Instead of filing a suit for mesne profits, however, the petitioner was advised to commence this present proceeding which purported to be under Section 144 and Section 151 Civil P.C., and therein he claimed recovery of mesne profits to the extent of nearly Rs. 46,000 for the period of his dispossession. The trial Court rejected the application holding that Section 144 was inapplicable to the facts of the case, and it was not a case which could properly be dealt with under Section 151, Civil P.C. Against this order of rejection an appeal was taken to the lower appellate Court, and a preliminary point was raised as regards the court-fees that were payable upon this memorandum of appeal. The District Judge held that ad valorem court-fees were payable under Sch. 1, Art. 1, Court-fees Act, and it is against this order that the present rule has been obtained.

(3.) Mr. Sen who has appeared in support of the Rule has contended before us in the first place that the present case is governed by Art. 11, Sch. 2, Court-fees Act, read with Clause (6) of the notification of the Government of India No. 4650, dated 10 September 1899, and the court-fee payable is two rupees only. In support of this contention he has relied upon two decisions of this Court, viz., Gangadhar Marwari V/s. Lachman Singh (1910) 11 C L J 541 and Madan Mohan De V/s. Nogendra Nath De AIR 1918 Cal 335. The second contention of Mr. Sen is that in any view of the case the order appealed from may be taken to be an order under Section 151, Civil P.C., for which a court-fee of Rs. 2 only is payable.