BAJILAL Vs. GOBARDHAN SINGH

JUDGEMENT

(1.) The appellant Baji Lal sued to foreclose a mortgage. As a condition precedent to foreclosure, the court below held that the appellant was bound to redeem a prior mortgage by payment of a sum of Rs. 5,941-6-5. Baji Lal has appealed against this portion of the decree and the office reported that the memorandum of appeal should bear an ad valorem fee on this amount. The Taxing Officer took the same view, but has referred the case under Section 5. It is not easy to reconcile all the decisions cited but in my opinion the later decisions support the view taken by the office. That view is in accord with the ratio decidendi in Nepal Rai V/s. Debi Prasad Weekley Notes 1905 p. 40.

(2.) In a reference under Section 5 in Jhandu Mal V/s. Himmat second appeal of 1907 from the decree of the Additional Judge of Meerut, the learned Judge who disposed of the reference said: The appellant plaintiff seeks by this appeal to get rid of a liability imposed on him by the decree under appeal to pay off Kalyan's prior mortgage as a condition precedent to bringing the mortgaged property to sale" and he held that the appellant must pay an ad valorem court-fee. I am unable to distinguish the principle therein laid down from that involved in the present case. My answer to the reference is that the office report is correct.

(3.) I allow the appellant one month within which to pay the deficient court-fee.