Decided on September 12,1952

Kothandaraman And Ors. Appellant


RAJAMANNAR,J. - (1.) O . S. No. 23 of 1944 was a suit filed in the Court of the Subordinate Judge of Chingleput on the foot of a mortgage against the present appellants. The learned Subordinate Judge passed a preliminary decree in favour of the plaintiffs. The appellants applied for leave to appeal to the District Court in forma pauperis. This application was rejected by the learned District Judge. Thereupon, the appellants filed a revision petition to this court, C. R. P. No. 767 of 184S. By order dated 5 -4 -1948 this Court allowed the appellants to file the appeal in forma pauperis. The appeal was therefore numbered as A. S. No. 277 of 1948. In the meantime the learned Subordinate Judge proceeded to pass a final decree. The appellants filed an appeal therefrom and also sought to file it in forma pauperis. The learned District Judge allowed this application and that appeal against the final decree was numbered as A. S. No. 325 of 1947. Both appeals were heard and disposed of by a common judgment. The result was that the appeals were dismissed with costs. The court -fee due to the Government was directed to be recovered from the appellants. The appellants then filed an application before the learned District Judge of Chingleput objecting to the direction to court -fee on both the appeals. The contention of the appellants was that as the full 'ad valorem' court -fee had already been paid on the appeal against the preliminary decree, viz, Rs. 329 -15 -0, there was no necessity to pay over again 'ad valorem' court -fee on the entire decree amount in the appeal against the final decree. According to the appellants, only a deficit sum of Rs. 30 was payable as court -fee after giving credit to the sum of Rs. 329 -15 -0, the court -fee already paid on the appeal against the preliminary decree. The learned District Judge refused to grant the application of the appellants. He held that credit could not be given to the court -fee paid in one appeal, in another appeal. There were two independent appeals, one against the preliminary decree and another against the final decree and they had both to be valued under the provisions of the Court -fees Act. An 'ad valorem' court -fee was, therefore, payable On the entire amount of the subject matter in each of the appeals. The appellants seek to have this order of the learned District Judge revised. 'Prima facie' the view taken by the learned District Judge appears to be correct. Undoubtedly there were two distinct appeals. It may be true that there were no new grounds which could be urged in the appeal against the final decree, which could not be urged in the appeal against the preliminary decree. That only shows that the appeal against the final decree was unnecessary and a superfluity. But so far as I am aware, there is no statutory provision, or authority, which lays down that a superfluous appeal need not bear any court -fee. If a litigant desires to indulge in the luxury of filing an appeal totally unnecessary, he will have to pay the court -fee in accordance with the provisions of the Court -fees Act, in this case Schedule I, Article 1. I agree, with respect, in the following observations of Meredith J. in - -'Kausalya v. Kauleshwar', 25 Pat 305, "Apart from all this, however, ethical considerations do not really enter into the picture. It is a question merely of construing the Court -fees Act. I have already shown that under the Court -fees Act 'ad valorem' court -fees are payable upon an appeal from the final decree in a mortgage suit, and that is settled by numerous decisions. If, therefore, for any reason the appellants can claim any credit or exemption from any portion of the fee it can only be by reason of some provision in the Court -fees Act. A complete search of the Act fails to reveal any provision for such a case."
(2.) LEARNED counsel for the appellants cited to me the case in - -'Supputhayammal in re', 55 Mad. 664, where it was held that when in a suit for accounts the same party appeals first from a preliminary decree and pays 'ad valorem' fee on the amount mentioned in the plaint and before the decision of that appeal files another appeal to the same court against the final decree, he need not again pay ad valorem fee on the entire amount awarded by the final decree but need only pay on the amount, if any, in excess of that on which court -fee has already been paid. It is obvious from the judgment of Pandalal J. who delivered the judgment of the Bench, that their decision was not intended to be of universal application to all cases of appeals against preliminary and final decrees. Though they were prepared to accept the principle above referred to in suits for accounts, they were aware of difficulties in extending the doctrine to other cases. Dealing with this case and other similar cases, Meredith 3. in - - 'Kausalya v. Kauleshwar',, 25 Pat 305, already referred to, observed : "In account suits and mesne profits cases, the amount due is not decided by the preliminary decree. The decree provides only that the amount is liable to be ascertained. Though the law provides that court -fees upon the preliminary appeal must be paid upon the plaintiff's estimate of the amount, that is, as it were, only provisional and by way of anticipation. The actual court -fee payable can be finally determined only later and in the case of the plaintiff the balance will have to be made up under Section 11, Court -fees Act before he can execute. It is, therefore, only reasonable that it should be the balance that the defendant must make up in his appeal from the final decree, It is the final decree which settles the actual liabilities, and not the preliminary decree, whereas in mortgage suits it is the preliminary decree which really settles the liabilities and the final decree is substantially merely a postponement of the final order of the Court to give the defendant a chance to pay."
(3.) RELIANCE was placed by learned Counsel for the appellants on the ruling in - - 'Budhuram v. Niamat Rai', 4 Lah 406. It was held in that case that in a suit for redemption where a preliminary decree was first passed fixing the amount payable and then a final decree after that amount had been paid, if appeals were preferred from both decrees asking for a reduction of the amount fixed in the preliminary decree and ad valorem court -fee has been paid on the appeal from the preliminary decree on the amount of reduction claimed, a court -fee stamp of Rs. 2 is sufficient on the appeal from the final decree. With great respect to the learned Judges, I am unable to follow the reasoning of this decision. There was a preliminary objection raised as to the sufficiency of the stamp on the appeal against the final decree, but it appears that the objection was not seriously pressed. That is why I do not find a full discussion which is likely to bo of any assistance to me. I agree with the learned Judges when they say that the final decree is a mere corollary to the preliminary decree, and follow it as a matter of course. If that be so, then the obvious course was not to file an appeal against the final decree. The learned Judges referred to the appeal from the final decree as being of a formal nature and as not contesting anything beyond what was contested in the appeal from the preliminary decree. I am unaware of any distinction made in the Court -fees Act between appeals which are of a formal nature and appeals which are not. I am unable to derive any help from this decision. It may appear to be hard on a litigant to make him pay court -fee twice over for what really is one adjudication. But this hardship is not inevitable and in the present case it is purely the appellants' own seeking. Obviously they need not have filed an appeal against the final decree. An appeal was being filed against the preliminary decree and that would have sufficed. If the appellants had succeeded in that appeal, the final decree, even if passed, would automatically have been vacated or modified. If the appellants chose to file an unnecessary and superfluous appeal, they will have to pay the court -fee in accordance with the provisions of the Court -fees Act. I agree with the learned District Judge that the appellants cannot claim any credit or exemption from any portion of the fee payable on the appeal against the final decree. The Civil Miscellaneous Appeal is therefore dismissed with costs.;

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