Pramada Charan Banerji and Gokul Prasad, JJ.
1. An office report has been put up before us in which it is stated that the amount of court fee paid on the plaint was insufficient and that a further sum of Rs. 385 was payable on the plaint. Dr. Agarwala disputes the correctness of the office report and we have therefore to decide whether the amount of court fee payable on the plaint was or was not sufficient. The suit was one for redemption of a mortgage made in 1863. The principal amount secured by the mortgage was Rs. 960. It provided that the, mortgagee was to remain in possession, appropriate the usufruct, deduct out of it the amount of interest payable on the mortgage which was at the rate of fifteen, annas per cent, per mensem, and appropriate the balance towards the principal. The mortgagors remained in possession of a part of the property upon an undertaking to pay rent for that part. In the present suit the plaintiffs sought to redeem the mortgage on the allegation that the full amount of the mortgage including interest had been discharged by the usufruct and that a surplus of Rs. 7,533-12-9 was due to the plaintiffs by the mortgagee. The plaintiffs accordingly claimed redemption and also asked that the defendant mortgagee be directed to pay to the plaintiffs the aforesaid amount. Court fee was paid upon Rs. 960, the principal amount of the mortgage, in accordance with the-provisions of Section 7, Clause (ix) of the Court Fees Act. A dispute was raised in the court of first instance as to the adequacy of the amount of the, court fee, but that court held that the amount paid was sufficient. The plaintiffs obtained a decree from the court of first instance for redemption, subject to the payment of a certain amount to the mortgagee which that court found to be due to the hitter. The plaintiffs appealed in respect of that amount to the lower appellate court and that court varied the amount. From this decree of the lower appellate court the present appeal has been preferred. The appeal raises a question as to jurisdiction and, apparently, as to the amount due. But the office reports that court fee ought to have been paid on the Rs. 7,533-12-9 in addition to the court fee paid in respect of the principal amount of the mortgage.
2. In our opinion the report is not correct. The suit is one for redemption, contemplated by Order XXXIV of the Code of Civil Procedure. Under Rule 9 of that order, upon a decree for redemption being made the court may order an account to ho taken, and if in the result any sum be found due by the mortgagor, the court should order the mortgagor to pay that amount within a time fixed by the court. Similarly, if any amount be found due to the mortgagor as surplus mesne profits, the court should direct the mortgagee to pay the said amount to the mortgagor. The suit, however, in every respect was a suit for redemption. Under Section 7, Clause (ix), of the Court Fees Act the amount of court fee payable in respect of a suit for redemption is to be calculated on the principal sum secured by tins mortgage. Therefore, in accordance with the terms of the Court Fees Act, the court fee payable would be regulated by the principal amount secured by the mortgage. This was the view taken by this Court in the case of Husaini Khanam v. Husain Khan (1907) I.L.R. 29 All. 471 (475). A similar view was taken in the case of Gopi Kishan v. Sorabjee (1921) 68 Indian Cases 226. Our attention has not been drawn to any ruling in which a contrary view has been taken. It is true that in a certain number of cases it has been held that, if a dispute arises in appeal as to the amount payable by or to the plaintiff, the appeal should be valued with respect to the amount claimed by the appellant and ad valorem court fee ought to be paid on that amount, but that is not the question before us. The only question we have to decide is whether, when a suit is brought for redemption and a certain, amount is claimed as surplus mesne profits, the plaintiff is bound to pay court fee upon the surplus amount claimed, in addition to the court fee on the principal amount secured by the mortgage. This question was decided in the cases to which we have referred and in these cases it was held that the suit being a suit for redemption, court fee was payable upon the principal amount secured by the mortgage. We agree with the view taken in these rulings, which have, as far as we are aware, not been dissented from by this Court or any other court. In any case we feel ourselves bound to follow them and hold that the amount of court fee payable upon the plaint was rightly paid with reference to the principal amount secured by the mortgage.
3. On the appeal coming on for hearing on its merits the following judgment was delivered.
Banerji and Gokul Prasad, JJ.
4. The only question which has been argued in this case is whether the court of first instance had jurisdiction to entertain the suit. The suit was one for redemption of a mortgage, the principal amount of which was Rs. 9G0. The facts of the case have been set forth by UK in our order passed today upon the question of the amount of court fee payable on the, plaint. In the plaint the prayer of the plaintiffs was that redemption should be granted non payment of a portion of the mortgage money; in the alternative it was prayed that the plaintiffs might be allowed to pay the whole of the mortgage money; and in the third place it was alleged that a surplus amount of Rs. 7,000 and odd was due and it was prayed that this amount should, be awarded against the defendant mortgagee. The plaintiffs themselves, who are the appellants here, took their plaint to the court of the Munsif in the belief that the Munsif had jurisdiction to entertain the suit. They allowed the suit to proceed to trial and a decree was passed by the Munsif for redemption upon payment of a certain sum. They themselves appealed to the District Judge from the decision of the Munsif, and after the appellate court has decided the case and made a decree in favour of the plaintiffs for redemption upon payment of a certain sum, they have come to this Court and they urge that the Munsif ought not to have entertained the suit which they themselves instituted in his court. We think the case is covered by the ruling in Kedar Singh v. Matabadal Singh (1908) I.L.R. 44 All. 5. It was for the plaintiffs to value the suit and they themselves valued it at Rs. 960, the principal amount of the mortgage. With reference to that valuation the suit was cognizable-by the Munsif. They say that surplus mesne profits were due and they gave, an estimate of the amount which they thought was due, but the relief sought in the plaint was that redemption should be granted and an account taken and, if upon the taking of the account any surplus amount was found due, that surplus should be paid over to them. The real valuation of the suit was based on the amount of the mortgage, with reference to which court fee had to be paid, and it was an ancillary part of the claim that an account should be taken and any amount found due to or by one of the parties should be awarded to the party to whom it was due. That did not alter the nature of the unit and did not increase the value of it. This was the view taken in the case to which we have referred and we are not satisfied that a different new was held in any other case by this Court. It comes with very bad grace from the plaintiffs for them now to contend that they went to a wrong court and therefore all the proceedings which have already been taken in the suit should be quashed and a fresh trial ordered in another court. We think the appeal is without force and accordingly dismiss it with costs.