- (1.) HON'ble MITAL, J. - The respondent No. 1 plaintiff has raised the question of sufficiency of court fees through an application under Section 47 of the Rajasthan Court Fees & Suits Valuation Act, 1961 read with Section 151 C. P. C. in the instant appeal preferred by defendant Krishna Kumar Bagla against the judgment and decree dated 17. 12. 97 passed by the learned Additional District Judge No. 1, Udaipur in Civil Suirt No. 13/86 whereby the suit of respondent No. 1-plaintiff was decreed for a sum of Rs. 8, 59, 194. 55 with pendente lite and future interest at the rate of 17% per annum with quarterly rest. The appellant has valued the subject matter of the appeal and has affixed court fees of Rs. 43,525/ -.
(2.) THE respondent No. 1-plaintiff has submitted an application that the appel- lant has not valued the subject matter of the appeal in accordance with the provision under Section 47 of Rajasthan Court Fees & Suits Valuation Act, 1961 (hereinafter referred as `act of 1961') because the interest accrued during the pendency of the suit till the date of the decree has not been included while calculating the subject matter of the appeal. THErefore, the appellant has not paid proper court fees and the appeal is liable to be dismissed on this court alone or the appellant may be directed to furnish sufficient court fees in accordance with the provision of Section 47 of the Act of 1961. THE learned counsel for the appellant has opposed this application though the reply has not been filed. I have heard the learned counsel for the appellant and the learned counsel for the respondent No. 1. I also perused the relevant provision under Section 47 of the Act of 1961. As already stated above the learned trial Court has granted pendente lite and future interest at the rate of 17% per annum till the date of realisation on payment of court fees. The learned counsel for the appellant has contended that the Court fees is not payable on the amount of cost awarded under the decree if no ground is specifically raised against the award of cost and the same principle is applicable in respect of interest pendente lite which is awarded by the court in exercise of its power and discretion under section 34 C. P. C. It is further submitted that interest shall become subject matter of appeal only when the award of the interest pendente lite or furture is also made one of the grounds of challenge of the decree in the appeal. I am not inclined to agree with this contention in view of the Explanation (3) to Section 47 of the Act of 1961. Section 47 of the Act of 1961 provides for the payment of Court fees on appeals which reads as under :- "47. Appeals :- The fee payable in an appeal shall be the same as the fee that would be payable in the Court or first instance on the subje- ct-matter of the appeal: Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree. " This provision also contains five explanations, but for our discussion Explanation No. (3) is relevant which runs as follows:- "explanation.- (3) In claims which include the award of interest subsequent to the institution of the suit, the interest accrued during the pendency of the suit till the date of decree shall be deemed to be part of the subject-matter of the appeal except where such interest is relinquished. " Thus, we find that Explanation (3) of Sec. 47 inserts a deeming provision that the interest pendente lite shall form subject-matter of appeal where the claims include the award of interest subsequent to the institution of the suit. The only exception where such interest will not be part of the subject- matter of the appeal is, when the interest is relinquished. This view was also taken in S. B. Civil First Appeal (Defect Case) No. 1589/97, Order dated 9. 9. 97 (1 ). In that case trial Court refused the pendente lite interest and therefore in view of the Explanation (3) to Section 47 of the Act of 1961 the claim of pendente lite interest was considered a part of the subject matter of the appeal and court fees was payable accordingly. I am, therefore, clearly of the opinion that the interest accrued during the pendency of the suit till the date of the decree is included in the subject matter of the appeal where the claims include the award of interest subsequent to the institution of the suit. The argument raised on behalf of the appellant for not including the pendente lite interest in the subject matter of appeal is held untenable. The learned counsel for the appellant further argued that the Court fees is not payable if the decree is not assailed on the ground of award of interest i. e. rate of interest and amount of interest because in that event the subject matter in dispute shall remain the same as it was at the time of filing of the original suit. My attention was specifically drawn to the exception carved out in Explanation (3) to Section 47 "except where such interest is relinquished". It is, therefore, vehemently argued that the appellant is prepared to relinquish the award of such interest to exclude it from the subject matter of the appeal. He placed reliance on State of Ma- harashtra Vs. Mishrilal Tarachand Lodha & Ors. (2 (2) According to the learned counsel for the appellant, it is settled principle of law that if any ground is relinquished in appeal then Court fees is not payable on that part by the appellant.
(3.) THE learned counsel for the respondent No. 1 has contested the above contention also on the ground that the appellant has nothing to relinquish when no claim has been passed in his favour. One can relinquish the claim or part of the claim if some claim or decree has been passed in favour of that person. THE decree has been passed in favour of the respondent No. 1 and respondent No. 1 is only in a position to relinquish the claim and not the appellant because the decree has been passed against him for the suit money, pendente lite and future interest. THE appellant has to pay the decreetal amount. He has nothing to recover under the decree from the respondent No. 1. However, the learned counsel for the appellant submitted that when the decree has been passed in favour of respondent No. 1, he has no ground to file an appeal and, therefore, he cannot have any occasion to relinquish any claim or part of the claim. If the decree is passed in favour of the pl- aintiff and the defendant prefers an appeal, then he has the right to challenge the decree in toto or in part only i. e. he can relinquish the challenge to the award of the interest. He further submitted that in a case where the suit is dismissed then there does not arise any question of accrued interest and the subject matter of the appeal remains the same which was at the time of filing of the suit. In that case qu- estion of relinquishment does not arise for the plaintiff. I have given my earnest consideration to the arguments putforth on behalf of both the parties. The question which arises for determination is whether the appellant who is defendant can relinquish the claim or ground for challenge in respect of the rate and amount of interest pendente lite granted by the Court in a decree. Still further whether the appellant-defendant is not liable to pay Court fees on the amount of interest pendente lite if no specific ground for challenging the same is made in the appeal and whether it will amount to have relinquished such interest according to the Explanation (3) to Section 47 of the Act of 1961. The expression `relinquish' means besides other meaning `to give up, resign, surrender (a possession, right, etc.), to cancel, do away with, to release, to give up or give over, to abandon, desist from (an idea, action, practice, etc.), to cease to hold, adhere to, or prosecute'. In view of the above meaning of the expression `relinquish', I am of the opinion that if a person gives up, surrenders or ceases to hold, adhere to, or prosecute his right then it may be said that he has relinquished his claim or right. If a suit is decreed for the principal amount and interest upto the date of the suit and also interest accrued during the pendency of the suit the defendant has a right to appeal against the decree seeking to reverse it in totto or in part if he so likes by relinquishing his challenge to that part of the decree. If in the memorandum of appeal no ground is specifically directed against the award of interest, then it amounts to relinquish his right to challenge the claim of interest. Therefore, in these circumstances it would mean that the defendant has relinquished the interest awarded in the decree and the interest not challenged in the appeal will not be the subject matter of appeal for payment of Court fees. I am not inclined to agree with the submission of the learned counsel for the respondent No. 1 that only the plaintiff can relinquish the interest because a decree has been passed in his favour. In view of the comprehensive meaning of the word `relinquish', I am of the opinion that the defendant against whom the decree has been passed, can also relinquish the claim of interest by not challenging it specifically in the appeal. Consequently, the defendant is not liable to pay Court fees on the relinquished part of the claim of interest. The appellant gets support from State of Maharashtra vs. Mishrilal Tarachand Lodha & Ors. (supra) and Mithoo Lal vs. Mt. Chameli & another It is submitted on behalf of respondent No. 1 that above mentioned deci- sions are not applicable to the facts of this case involving the provision of section 47 of the Act of 1961 because it specifically provides to include the interest pendente lite to be part of the subject matter of the appeal. In the above decisions Bombay Court Fees Act, 1959 Schedule I, Article I and Court Fees Act, 1877 were respectively considered but in my view Section 47 of the Act of 1961 also clearly lays down exception from including interest pendente lite to be part of the subject matter of the appeal where such interest is relinquished. Therefore, the principle laid down in the above mentioned decisions fully apply that if the defendant has not challenged the award of interest specifically in the memorandum of appeal then the amount of interest is not subject matter of the appeal and he is not liable to pay Court fees on the amount of interest. I hold that the interest pendente lite will not be included in the subject matter of the appeal under Section 47 of the Act of 1961, if it has been relinquished by the defendant by not challenging the same in the appeal. ;