1. The only question in this appeal is whether or not the petition of appeal was properly presented in the Court of the District Judge. The suit was brought by the plaintiff to recover the amount due on a security bond of the 17th of August 1895 in which certain property was hypothecated. It is stated in the claim that there were two earlier mortgages. One dated the 9th of August 1895 and another dated the 7th of April 1906. But in his plaint the plaintiff alleged that both these bonds were satisfied. The prayers in the plaint are (1) for a declaration that the amounts due on the two bonds, which we have mentioned above, have been satisfied and discharged in full and the value of this claim is stated to be Rs. 4,938 and (2) that an order may be passed directing the defendants to pay to plaintiff on foot of his security a sum of Rs. 4,531-3-0. There is a further alternative prayer that an order in any case may be passed directing the defendants to pay the amount due to the plaintiff on foot of his security bond and for sale of the property hypothecated in it subject to the prior lien of the defendants Nos. 7-8 (that is the mortgagees under the two earlier deeds) in case it be found that the bonds have not been satisfied.
2. The Court of first instance found that the two earlier mortgages were satisfied and gave a decree to the plaintiff in accordance with prayers 1 and 2.
3. An appeal was presented to the District Judge. An objection was raised by the plaintiff to the jurisdiction of the District Judge on the ground that the value of the suit in the Court of first instance largely exceeded Rs. 5,000, that in fact the value of the suit in that Court was the aggregate of the two sums of Rs. 4,938 and Rs. 4,531-3-0 at which it was valued by the plaintiff. The learned District Judge overruled this objection. He states in his judgment,--'It seems to me that the value of the suit must be taken to be the amount claimed under prayer (6) (i.e. the second prayer of relief). The only question in prayers (a) and (c) was whether the property hypothecated for the lease money was burdened by prior encumbrances or not. These prayers affected not the amount which would be declared due to the plaintiff but only the extent to which that amount might be realised out of the sale- proceeds of the hypothecated property.' The learned District Judge is, no doubt, right in this latter observation but he seems to us to have overlooked the fact that the first prayer in the plaint is a prayer for a declaration that the two earlier mortgages were discharged and satisfied, and also the fact that the defendants Nos. 7 and 8 were impleaded with a view to a decision by the Court as to the rights of these mortgagees. In view of this it cannot be said that the prayer for a declaration was merely ancillary to the main prayer in the suit or that it is not a substantial claim for a relief as against the two earlier incumbrances. The result of the decision in regard to the first prayer was to relieve the mortgaged property from any claim on foot of these mortgages and so to enhance the value of the security of the plaintiff.
4. As regards the tribunal to which an appeal is to be preferred Section 21 of the Civil Courts Act is quite specific and clear. That section enacts that save as enacted by earlier provisions in that Act, which do not apply to this case, an appeal from a decree or order of a Subordinate Judge shall lie (a) to the District Judge where the value of the original suit in which or in any proceedings arising out of which the decree or order was made did not exceed Rs. 5,000 and (b) to the High Court in any other case. Here the value of the original suit according to the valuation put upon it by the plaintiff himself was in respect of prayer (a) Rs. 4,938 and in respect of prayer (b) 4,531-3-0. The value of the suit, therefore, was unquestionably over Rs. 5,000. It may be that the first prayer was unnecessary. It was not obligatory upon the plaintiff to seek a declaration that the earlier mortgages were discharged, nor was it obligatory upon him to implead these mortgagees, namely, defendants Nos. 7 and 8 but he has chosen to do so, and has valued his suit accordingly. We have only to look and the Court below had only to look at the value of the suit, as framed, and that value largely exceeds Rs. 5,000.
5. For these reasons we allow the appeal, set aside the decree of the Court below and direct that the memorandum of appeal be returned to the defendants-respondents with a view to its being presented to the proper Court. As this question was raised in the lower Appellate Court the respondents must pay the costs of this appeal. These costs will include fees on the higher scale.