- (1.)THIS is an appeal against the judgment and decree of the learned District Judge, Jammu, dated 21 -8 -1968, dismissing the appeal preferred by the appellants from the judgment and decree of the learned city judge, Jammu, as time barred.
(2.)SHRI B. L. Suri, appearing for the respondents has taken a preliminary objection to the effect that the memorandum of appeal has not been properly stamped and unless the appellants Nos. 1 and 2 pay ad valorem court fee on the decretal amounts of Rs. 4976/ - and Rs. 11,843/ - respectively the appeal cannot be entertained. In support of his contention the learned counsel has invited my attention to two rulings of this court reported as A. I. R. 1956 J&K, 35 and A. I. R. 1963 J&K, 9.
(3.)SHRI Rachpal Singh appearing for the appellant has tried to meet this objection by contending that the memorandum of appeal filed by the appellants cannot be said to be deficiently stamped especially in view of the direction contained in the concluding portion of the judgment of the trial court to the effect that the respondents shall pay the remaining court fees on the amounts decreed in their favour at the time of filing of an application for execution of the decree. According to the learned counsel this order makes the adjudication a provisional one and takes it out of the ambit of final decree and as such the court fees paid on the memorandum of appeal cannot be said to be deficient.
I have given my careful consideration to the matter and I am of the opinion that the contention of the learned counsel for the appellants has no substance and must be rejected. A reference to the concluding portion of the judgment of the City Judge, Jammu would show that he has after examining the report of the Commissioner passed a final decree in favour of Durga Dass and Shamboo Singh for Rs. 13076/ - and Rs. 7743/ - respectively. He has further decreed that out of the decretal amount a sum of Rs. 497 6/ - shall be paid by Jagdish Chander respondent and the remaining sum of Rs. 11,843/ - by Prithi Singh respondent. The further direction in the judgment that the respondents shall pay the remaining court fees to the extent of their shares of the decretal amount at the time of their taking out execution of the decree is in conformity with the provisions of Section 11 of the Court fees Act and cannot change the final character of the judgment and decree. In a suit for accounts the plaintiff is at liberty to give tentative value of the relief sought by him and the court can give a decree for a larger amount and direct that the decree shall not be executed until the difference between fees actually paid and the fee which would have been payable had the suit comprised whole of the amount decreed is paid to the proper officer.