1. This is an appeal under the Court-fees Act against a decision of the learned District Judge of Agra. The proceedings arose out of a mortgage of 1894 under which in due course the mortgagor brought redemption proceedings under Section 12, U.P. Agriculturists' Relief Act. The Court under that Act held that the entire principal had been paid off out of the rents and profits of the property - the mortgage, of course, being a usufructuary mortgage. The original amount of the principal secured by the mortgage had been three thousand and two hundred rupees.
2. Against this decision the mortgagee appealed by a memorandum of appeal dated 26th March 1943, and it is relevant for the purpose of what follows to see exactly what it was that he claimed in his appeal. In the memorandum of appeal he alleged that for sundry reasons the decision of the Munsif under Section 12, Agriculturists'Relief Act, had been wrong and he finally made this prayer which we will set out verbatim:
To decree the appeal and modify the decree of the lower Court at least by two hundred rupees, the least amount which even according to the respondent's own account (appears) to be the mortgage money still due to the appellant.
3. It is, therefore, quite clear that the appellant, probably quite deliberately, avoided setting out any exact sum which he said was due to him on redemption but preferred to put it in the form that a Certain minimum sum was due to him, without, of course, limiting the maximum which might turn out to be payable to him. And this becomes still more clear when one looks at the way in which he has valued his appeal. He has valued it on the minimum sum of two hundred rupees referred to above and says that this is 'tentative,' and he offers to make up the court-fee to any extent that may ultimately be found necessary having regard to what he is awarded. Now, to our minds this does not amount to a valuation at all. When a thing is to be valued, as we understand it, that means that a certain value has to be put on it and by no stretch of imagination can it be said that when a man asserts that a minimum of so much is due to him but that any amount more may be ultimately turn out to be his, that is a valuation at all. Now, turning to the Court-fee a Act which governs this matter, we find that there is a special provision in it which deals with appeals under Section 23, United Provinces Agriculturists' Relief Act. That is the section under which the appeal was brought in the Court below. It is to be found in Schedule 1, Article 2(b), Court-fees Act, 1870. It says this:
2 (b) Memorandum of appeal filed under Section 23, United Provinces Agriculturists' Belief Act, 1943...the same fee as would be leviable on a memorandum of appeal under Article 1.
4. Turning then to Article 1, we find that under that Article - and it is only to that Article that we are referred - a memorandum of appeal would carry a court-fee ad valorem on 'the amount or value of the subject-matter in dispute....' It seems to us that the effect of Article 2(b) is that the Legislature has provided a special provision to deal with appeals under Section 23, United Provinces Agriculturists' Relief Act and that the test to be applied is the 'subject-matter in dispute' in the appeal. Judged by this test, we think that what has to be done is to look at the appeal itself and ask oneself the question : What is the value of the subject-matter in dispute in this appeal? Had the present appellant unequivocally said in his memorandum of appeal in the Court below that he abandoned everything except a claim to two hundred rupees and prosecuted his appeal to that extent and that extent only, or if in any other way he had made it plain that that and that only was the amount that he claimed on redemption, then we should probably have thought that it was the sum of two hundred rupees and no more which was the amount or value of the subject-matter of the appeal. But that is a long way from what the appellant has actually done in this case. As we have pointed out above, he has set no valuation on his appeal. He tried to get the best of both worlds by saying evasively in effect that while he felt he might not get more than two hundred rupees, he hoped to get as much as possible and that, if he did get more, he would be only too pleased to pay any extra court-fee. We do not regard that as a 'valuation' at all.
5. The present position, therefore, is that there was no valuation in the memorandum of appeal in the Court below. Nor can we accept it that the suit was merely an account suit. So was incapable of valuation in the first place. Before actually dealing with the order the learned District Judge made, there is one other point to which we think we ought to refer. It is suggested by the standing counsel that even if the view expressed above is right, then Section 7(ix) would come into play. That section says that in suits against a mortgagee for the recovery of the property mortgaged, i.e. redemption suits, the amount of the court-fee payable has to be computed according to the principal money expressed to be secured by the instrument of mortgage. That is quite clear and is, no doubt, applicable in the case of a suit. But we cannot regard it as having the slightest application in the face of the clear and explicit provisions of Article 2(b) of Schedule 1, which provides a specific test as regards a memorandum of appeal filed under Section 23, U.P. Agriculturists' Belief Act. As we have already said, we think that in that case the only test is the test of what is the actual value of the subject-matter in dispute in the appeal.
6. The learned District Judge, while holding that the appellant's appeal before him was not properly valued, took a somewhat different view from ours. He thought that Section 7(ix), Court-fees Act, prevailed and that the appellant should have valued his appeal at the full amount of Rs. 3200, being the amount of the principal sum secured by the mortgage. What he did, therefore, was to give the appellant a fortnight's time to amend the valuation and to make good the deficiency in the court-fee. The appellant did not do that, but brought this appeal instead. We do not agree with that order to this extent that we think that the learned Judge went too far in ordering the appellant to base his valuation on the full amount of the principal sum secured by the mortgage. We think it should have been on the amount or value in dispute in the appeal and that it would have been better if the learned Judge had given the appellant two weeks time in which to place a certain valuation on his appeal which upto that moment he had never done. For these reasons what we propose to do is to set aside the order of the District Judge and to direct that the appellant is to have four weeks from today's date within which, if so advised, to amend his memorandum of appeal in the Court below by placing a fixed, and certain valuation on his appeal and paying a court-fee commensurate with it. In all the circumstances we think that there should be no order as to costs.