PUNJAJI Vs. RAMCHAND

JUDGEMENT

(1.) THE appellant was sued along with his father, respondent 2, by respondent 1 on the basis of a mortgage with a stipulation for foreclosure of the mortgaged property. The principal sum secured by the mortgage is Rs. 3,500 and the amount sought to be recovered by suit Rs. 6,141-40. A preliminary decree for foreclosure in lieu of Rs. 6,678-3-6 has been passed against both the defendants. The appellant comes up in appeal asking for two reliefs : (i) that the mortgage be held to be inoperative as against his share in the property and (ii) that the price of redemption be reduced by Rs. 690-7-6. The appellant paid a fixed fee of Rs. 10 only on the first, and an ad valorem fee on the second of the reliefs. The office pointed out that the proper fee for the first relief was not Rs. 10 but a fee calculated on the value of the property sought to be exempted from the operation of the decree. On being called upon to show cause why an ad valorem fee should not be demanded of him on the first relief, the appellant urged that the relief claimed being only declaratory, a fee of Rs. 10 only was quite sufficient.

(2.) I do not agree with the appellant's learned pleader's contention. So far as I have been able to judge of the nature of the first relief, it is self-evident that, the appellant disputes the mortgagee's right to foreclose his share of the mortgaged property in lieu of the mortgage debt declared by the decree. In other words, he claims his own share to be completely exempted from all liability for every single pie of the decree. No doubt for purposes of the relief, he need not, and even does not, dispute the extent of the price of redemption. He does not care whether the decree stands for the entire amount or for a smaller sum as against the other defendant so long as his own share of the property is exempted. He does not mind whether the rest of the property is lost to the other defendant or not, in lieu of the debt or any portion thereof. In short, if he disputes the mortgagee's right to foreclose his share of the mortgaged property, he must pay Court-fee on the principal sum of Rs.

(3.) THE further question, therefore, is whether a fixed fee of Rs. 10 on the relief of exemption, as on a declaratory suit, is sufficient, or the appellant must be called upon to pay Court-fee on the principal sum secured by the mortgage, or on any other sum or value representing either the value of the debt from payment whereof or, the value of the property in respect of which, the exemption is sought in appeal. What then are the considerations on which the value of a relief in suit or appeal is to depend.