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Sheoraj Singh and ors. Vs. Lalta Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1917)ILR39All452
AppellantSheoraj Singh and ors.
RespondentLalta Prasad and ors.
Excerpt:
suit for redemption of a mortgage - preliminary decree passed in two parts--appeal--court fee. - - when the amount is ascertained i will fix the time within which the deficiency should be made good......the right to redeem and directed that the accounts be taken. the defendant appealed against that decree. he paid the necessary court fees and the appeal was admitted. the court below has now gone into the accounts and has found a sum of about rs. 37,000 to be due. the defendant has again appealed and he claims a sum of about rs. 61,000, he has filed his appeal on a two-rupee stamp. the office reports that the court fee payable is the ad valorem fee on the value of the appeal. the only argument before me is that the appellant has had to appeal once against the preliminary decree, that it was the fault of the court below in passing this preliminary decree in two parts and that he ought not to be penalized thereby and made to pay court fees a second time. the first appeal filed is now.....
Judgment:

Tudball, J.

1. The facts of this case may be briefly stated as follows. The plaintiff respondent brought a suit for redemption of a mortgage. The suit was resisted by the present appellant, who denied the plaintiff's right to redeem and also challenged the amount on which redemption was sought. The court below held that the plaintiff had the right to redeem and directed that the accounts be taken. The defendant appealed against that decree. He paid the necessary court fees and the appeal was admitted. The court below has now gone into the accounts and has found a sum of about Rs. 37,000 to be due. The defendant has again appealed and he claims a sum of about Rs. 61,000, He has filed his appeal on a two-rupee stamp. The office reports that the court fee payable is the ad valorem fee on the value of the appeal. The only argument before me is that the appellant has had to appeal once against the preliminary decree, that it was the fault of the court below in passing this preliminary decree in two parts and that he ought not to be penalized thereby and made to pay court fees a second time. The first appeal filed is now pending, and in my opinion the two appeals should be considered as one and full amount of court fee realized as if the two appeals were one appeal. The amount which the court below has found to be due to the sub-mortgagees is a sum of Rs. 85,322. The court has ordered that the amount due from the mortgagor shall be devoted first of all to the satisfaction of the sub-mortgage. It is obvious that if the sum found due to the sub-mortgagees has been correctly ascertained the amount payable by the mortgagor, even if the appeal succeeds as to the amount, will not satisfy the sub-mortgage. Therefore in calculating the value of the appeal the sum which has been found to be due to 'the sub-mortgagees must not be taken into consideration. The office will calculate the fee payable on the appeal as if the two appeals were one. The sum already paid will be deducted and the balance only will be recoverable. Lot the office submit a report on this basis. When the amount is ascertained I will fix the time within which the deficiency should be made good.

2. By my order, dated the 15th of February, 1917, this appeal and earlier appeal (F. A. No. 364 of 1915) have been consolidated into one appeal. The valuation of the appeal to this Court must be taken to be Rs. 61,000, and on that valuation a court fee of Rs. 1,250 must be paid. A court fee of Rs. 1,035 having been paid in the earlier appeal, and of Rs. 2 on this appeal, total Rs. 1,037, there is a deficiency of Rs. 213, payable by the defendants appellants in this Court. Let the deficiency be received, if paid within six weeks.


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