BABU BABUJEE ISAR Vs. CHETHRU SINGH

JUDGEMENT

(1.) The petitioners who were decree-holders in a successful suit in ejectment applied to the Munsif for ascertainment of mesne profits. A Commissioner was appointed to whose report the judgment-debtors took objection, but they made default in pressing their objection before the Munsif who gave a decree for Rs. 1,483-12-6. The judgment-debtors applied to the District Judge valuing their appeal at Rs. 201 and describing it as a miscellaneous appeal, with a court-fee stamp of one rupee. The Sarishtadar noted that this was not a miscellaneous appeal but a title appeal, but no remark was made regarding the deficit court-fee. The proper value of the appeal was the value of the decree; and the District Judge before entertaining the appeal ought to have required the appellants to pay a court-fee of Rs. 135 since the appeal was an appeal from the whole decree, and in the argument it was contended on behalf of the appellants that the Munsif had no power to assess mesne profits at all. In the result the decree of the Munsif was set aside and the suit was remanded to this Court for rehearing and for considering the objections of the judgment-debtors. The decree in appeal was signed and sealed on February 25, 1937. On March 31, the decree-holders petitioned the District Judge for an order staying further proceedings in the Munsif's Court until the judgment-debtors bad made good the court-fee which ought to have been paid on their memorandum of appeal. The District Judge decided that he had no jurisdiction to revise his predecessor's decision and rejected the application. The decree-holders have now applied for revision of the District Judge's order.

(2.) It is not open to question that the District Judge ought not to have entertained the appeal until ad valorem court-fee was paid. The appeal was not properly valued and the memorandum was not properly stamped; but the question here is whether the order of the District Judge made on April 15, 1937, was made with jurisdiction. It is suggested that because the application in revision has been entertained in this High Court, the Court has power under Section 12 of the Court Fees Act to enter into questions of whether the appeal in the Court below was valued improperly in a manner detrimental to the revenue; but I do not consider that where the order of which revision is sought was manifesly correct, an order ought to be made in this Court which would have the practical effect of setting it aside. It is suggested on behalf of the opposite party that if the court-fee had been paid, the appellants before the District Judge would have been entitled to claim a refund under Section 13 of the Court Fees Act, but that may be doubtful. There can be no doubt that the order of the District Judge is correct, in view of the decision in Kedar Nath Goenka V/s. Maharaja Chundra Mauleshwar Prasad Singh Bahadur 11 Pat. 532 : 137 Ind. Cas. 855 : 13 PLT 304 : Ind Rul. (1932) Pat. 159 : AIR 1932 Pat. 228.

(3.) I do not consider that any ground has been made out for interference with the order of the District Judge in this Case and the application is dismissed with costs. Hearing-fee two gold mohurs.