Michael Westropp, C.J.
1. This Court is of opinion that any right of appeal, to which the plaintiff might have been entitled under Sections 31 and 36 (combined) of the Civil Procedure Code (Act VIII of 1859), against the order of the District Judge, which fixed the amount of the Court fee chargeable on the plaint, has been taken away by Section 12, clause I of the Court Fees Act VII of 1870. Under clause II of the same section, a Court of Appeal, before which a suit may come, is, if the question of amount of fee have been wrongly decided in the Court below to the detriment of the revenue, empowered to require payment of the additional fee, but has no authority to reduce the fee, if wrongly decided to the detriment of the subject and advantage of the revenue. Section 36 of the Civil Procedure Code is not mentioned in the second section or third schedule of the Court Fees Act amongst the enactments wholly or partially repealed by that Act; but Section 2 and Schedule III are not exhaustive, and where a later Act is absolutely repugnant, in one of its provisions, to a provision in a former Act, the earlier enactment is pro tanto repealed. Here, accordingly, the special provision in Section 12, clause I of the Court Fees Act VII of 1870, being that the decision of the Court, in which the plaint is filed, shall be final as to the amount of fee chargeable on the plaint, the 36th section of the Civil Procedure Code, which gives a general right of appeal on the rejection of a plaint on any of the grounds mentioned in Sections 29 and 31 of that Code, is repealed, so far as regards the rejection of a plaint, on the ground that it has not been sufficiently stamped in respect of the Court fee chargeable on it. 11 Beng. L.R. 370 and Civ. Ref. 14 of 1871 (Bombay), decided 29th August 1871 not reported.]
2. We thus are relieved from the necessity of deciding the very difficult question as to the fee properly chargeable in such a case as the present, viz., what provision of the Court Fees Act regulates the fee chargeable on a plaint filed by a mortgagor, seeking to set aside a mortgage alleged to have been obtained by duress or force on the part of the mortgagee, and for an injunction against any exercise, by the latter, of a power of sale contained in the mortgage. It has been argued for the mortgagor that it comes within Section 6, clause IV pl;. (c) and pl. (d); whereas, on behalf of the mortgagee, the Collector of Thana, it has been contended that it falls within clause IX of the same section. The difficulty is one from which it would be desirable that Courts of First Instance should be relieved by a more explicit declaration of the intention of the Legislature.
3. The appeal, accordingly, is rejected with costs, to be paid by the appellants to the respondent.