Norman Macleod, C.J.
1. The plaintiff filed this suit against ten defendants to recover a sum of Rs. 4,617-4-0. A decree was passed against the first defendant only by the trial Court, and an appeal against that decree was dismissed by the District Judge. The plaintiff has now filed a second appeal against that decree, and claims to value his appeal as if he was suing merely for a declaration, namely, that the decree passed by the trial Court was binding against the other defendants also. This contention seems to have found favour with the Taxing Officer, who relied upon the decision in Zinnatunnessa Khatun v. Girindra Nath Mukerjee I.L.R. (1903) Cal. 788 which has nothing whatever to do with the point raised by the appellant in this case. There the suit was filed originally for a declaration that a certain decree was ineffectual and inoperative against the plaintiffs.
2. In this case there is a money suit against a large number of defendants, and the plaintiff having only got a decree against one of them, seeks to get a decree against the remaining defendants. The only order, therefore, that this Court could pass, if the appellant is successful, would be that the remaining defendants should pay the amount claimed to the plaintiff.
3. The same question came up for decision before the High Court of Madras in Ramasami v. Subbusami I.L.R. (1890) Mad. 503. There the suit was filed upon a hypothecation bond executed by the first defendant. The son adopted by the deceased husband of the first defendant was made a party, and he claimed that the debt was not binding on him. The first Court passed a decree against both the defendants. In appeal, the second defendant was exonerated. The plaintiff preferred a second appeal against the second defendant as sole respondent and affixed to the memorandum of appeal a ten rupees stamp as if a declaratory decree was sought. The judgment was as follows:-
The appeal in substantially to establish the plaintiffs' right to render the hypothecated property belonging to the second defendant liable to be sold in satisfaction of the debt claimed in the suit. The Court fees payable must, therefore, be calculated on this amount.
4. It is, therefore, clear that the decision of the Taxing Officer was wrong, and the appellant cannot, by saying that he is asking for a declaration that the decree passed against the first defendant is binding against the other defendants, get rid of the fact that he is asking this Court to pass a money decree against the other defendants. The appeal, therefore, has been wrongly valued, and it may be noted that when the first appeal was filed to the District Court, it was not valued on this basis, but was valued on the original claim. The appellant, therefore, must repay the Court-fee which was refunded. A week's time is allowed for making this payment.