PANDURANG MANGAL Vs. BHOJALU USANNA

JUDGEMENT

(1.) THIS is an application by the plaintiffs to revise the order, dated 31st January 1915, passed by the Court of the third Subordinate Judge, second Class, Nagpur, in civil Suit no. 101-A of 1943.

(2.) THE question involved is one of court-fee. The plaintiffs filed a suit for a declaration that their interest in the property was not liable to be sold in execution of the mortgage-decree passed in Civil Suit No. 60- A of 1941. The plaintiffs filed the suit on a court-fee stamp of Rs. 20. One of the issues framed was whether the court-fee paid by the plaintiffs was proper. The finding was that it was necessary for the plaintiffs to ask for the consequential relief of setting aside of the decree and the sale. According to the lower Court, ad valorem court-fee was payable under Section 7(iv)(c), Court-fees Act, 1870. The correctness of this view has been challenged in revision.

(3.) THE relevant facts of the case are briefly these: Mangal, Maroti and Sadasheo (defendants 6 to 8) executed a simple mortgage on 4th June 1930 in favour of Bhojalu (defendant 1), his brother Vithoba and their father Usanna. Both Usanna and Vithoba are dead. Rukmi is the widow of Vithoba and is defendant 2. Defendants 3 and 4 are the sons of defendant 1. The mortgagees filed Civil suit No. 60-A of 1941 in the Court of the 3rd Subordinate Judge, 2nd class, Nagpur, against the mortgagors. The present applicants are the sons of Mangal, defendant 6, and were not parties in the mortgage suit. In execution of the final decree for sale, dated 29th December 1942, the mortgage property was sold on 8th September 1943 and it was purchased by defendant 5 for Rs. 775. The sale has not yet been confirmed.