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Abdul Haq and ors. Vs. ShamshuddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1941All357
AppellantAbdul Haq and ors.
RespondentShamshuddIn and ors.
Excerpt:
- .....rupees. it may be contended, on one side, that the whole of the debt has been paid off except a sum of rs. 50 and it may be contended, on the other side, that the whole debt has been paid off. the dispute would really be about a sum of rs. 50, yet the court, fees in the original suit for redemption and the court-fees in appeal on the same point would have to be paid ad valorem on a sum of one lakh of rupees. i have, however, to construe the act as it stands and it seems to me that only one construction is possible. i hold that the court-fees must be paid ad valorem on the principal sum secured, by the mortgage that is, on a sum of rs. 700.
Judgment:
ORDER

Allsop, J.

1. This is a second appeal against a decree in a suit instituted against a mortgagee for the recovery of the property mortgaged. The question is how the court-fee should be calculated. The only dispute now is whether the mortgage could be redeemed before the expiry of a period of 15 years. There is no dispute about the amount of money which is to be paid. The Registrar, as taxing officer, has pointed out that the terms in the Court-fees Act as amended are conclusive. In Section 7 of the Act it is said:

The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:.(ix) In suits against a mortgagee for the recovery of the property mortgaged, according to the principal money expressed to be secured by the instrument of mortgage.

2. According to Section 2(v) the term 'suit' includes a first or second appeal from a decree in a suit. The part of Section 7 which I have just quoted if expanded according to this definition is in the following terms : 'In a second appeal from a decree in a suit against a mortgagee : for the recovery of the property mortgaged; according to the principal money expressed to be secured by the instrument of mortgage.' This is a second appeal from a decree in a suit against a mortgagee for the recovery of the property mortgaged and therefore the court fees must be calculated according to the principal money expressed to be secured by the instrument of mortgage. The court-fee must be paid ad valorem on the amount of the principal money expressed to be secured. The result certainly seems to be somewhat extraordinary. There may be a mortgage to secure a debt of a lakh of rupees. It may be contended, on one side, that the whole of the debt has been paid off except a sum of Rs. 50 and it may be contended, on the other side, that the whole debt has been paid off. The dispute would really be about a sum of Rs. 50, yet the court, fees in the original suit for redemption and the court-fees in appeal on the same point would have to be paid ad valorem on a sum of one lakh of rupees. I have, however, to construe the Act as it stands and it seems to me that only one construction is possible. I hold that the court-fees must be paid ad valorem on the principal sum secured, by the mortgage that is, on a sum of Rs. 700.


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