JANKIBAI RAMDAYAL Vs. CHIMNA SADASHIV VANI

JUDGEMENT

(1.) IN this case a preliminary decree was passed against the defendant No. 5 in a mortgage suit after the case had been taken up to the High Court. As the 5th defendant failed to pay the amount mentioned in the preliminary decree, this case a preliminary decree was passed against the defendant No 5 in a mortgage suit after the case had been taken up to the High Court. As the 5th defendant failed to pay the amount mentioned in the preliminary decree, the plaintiff applied under Order XXXIV, Rule 5, for a decree absolute for sale, and a final decree was passed on the 29th June 1917. The 5th defendant then filed an appeal against that decree absolute and claimed to be allowed to file the appeal on an eight-anna stamp. The District Judge held that the Court fees must be paid ad valorem on the decretal amount. The appellant was given fifteen days within which to pay. A second appeal has now been filed against that order, and it is difficult to see on what the defendant s contention is based. The decree passed under Order XXXIV, Rule 5 is a final decree in the suit. It stops the litigation, and if a party to that decree chose to file an appeal, it must be treated as an appeal for the purposes of Court fees like any other appeal from a final decree. This question was raised before a Full Bench at Allahabad : see Bajrangi Lal v. Mahabir Kunwar (1913) I.L.R. 35 All. 476, F.B. It was there held that an appeal from a final decree passed under Order XXXIV, Rule 5, of the Civil Procedure Code of 1908 required an ad valorem Court fee and could not be stamped as an appeal from an order. I agree with that decision and the appeal is dismissed with costs.