Om Prakash Trivedi, J.
1. The only point in this appeal is whether the Court-fees paid on the memorandum of appeal is sufficient. The respondent Lala Ram Kumar bad filed a suit for recovery of Rs. 3,500/-. The suit was decreed for Rs. 1,750/- and the parties were directed to pay and receive costs according to their success and failures. The respondent then appealed and paid court-fee of Rs. 1.50 paise on the memorandum of appeal. An objection was taken before the District Judge Bahraich that the court-fees paid on the memorandum of appeal was insufficient. According to the objection the ad valorem court-fees should have been paid on the amount decreed, that is, Rs. 1750/-. The respondent's contention was that he had not contested the amount decreed but had only filed the appeal against refusal to pass an instalment decree by the trial court. It was urged that the appeal could be treated as an objection under Section 47, Civil Procedure Code on which only a court-fees of Rs. 1.50 paise was payable. This contention was not accepted by the District Judge and he held that ad valorem court-fees should have been paid on the memorandum of appeal, the same being valued at Rs. 1750/-. It is against this order that the present appeal has been filed.
2. The argument of the learned counsel for the appellant is that court-fees is payable under Article 17 Schedule II of the Court Fees Act, in force in the year 1965 when the appeal was filed, inasmuch as, according to his submission it was not possible to estimate the subject-matter of the appeal at a money value. This contention appears supported by decision in the case of Deputy Commr. Kheri v. Raja Shantranji Ji, . It was held in that case that where an appeal does not relate to the amount for which the decree has been passed but to the manner in which the decree can be enforced or executed, the appeal falls under Article 17 (vi), Schedule II, Court Fees Act. On facts, which are analogous to the facts of the present case, in the case of Smt. Sardar Devi v. Nihalkaran , similar view was taken by the Rajasthan High Court. In that case the plaintiff-appellant had instituted a suit and obtained a decree for Rs. 11,500/- principal plus interest at a certain rate upto the date of the institution of the suit and the date of the decree, thereby making a total sum of Rs. 12,526.43 n.p. Thereafter the decree allowed interest to the appellant at 4 1/4% till realisation on the principal sum remaining due. The decree further allowed payment of the amount in instalments. The petitioner appealed against the decree granting instalments and paid a Court fess of Rs. 10/- only treating the memorandum of appeal as falling under Schedule II of Article 17 (vi) of the Court Fees Act. Objection was taken to the Court fees paid and it was urged that the appellant was liable to pay Court fees at the ad valorem rate on the difference between the amount claimed in appeal and the amount decreed and also on the difference to the appellant between getting his money on the date of the decree under appeal and getting it by instalments as ordered. The contention that ad valorem court-fees was payable was not accepted and it was observed that all the appellant suffers is that instead of getting the amount due at once the payment of the amount is postponed to certain periods by the instalments granted. In that situation the court held that it is difficult to put money value on the relief claimed by the appellant and held that memorandum of appeal fell under Article 17 (vi) of Schedule II of the Court-fees Act I am of opinion that in the present case also the appellant having questioned the trial Court's refusal to grant instalments this is a case where it is difficult to put a money value to the subject-matter of the appeal and the case was covered by Article 17 (vi) Schedule II of the Court-fees Act. Under Article 17 (vi) Schedule II of the Court-fees Act in a suit Where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act, the court-fees payable is Rs. 10/-. The appellant's contention that ha was liable to pay court-fees of Rs. 1.50 paise, the memorandum of appeal being treated as an objection under Section 47 Code of Civil Procedure, is clearly untenable. Therefore, while I do not agree with the lower appellate court's view that ad valorem court-fees was payable on the entire amount decreed and hold that it is payable under Article 17 (vi) Schedule II of the Court Fees Act, the Court-fees paid appears to be deficient even upon that view by Rs. 8.50 paise.
3. Accordingly, the appeal is partly allowed. The order passed by the lower appellate court, appealed against, is set aside and the appellant is directed to pay the deficient court-fees of Rs. 8.50 paise on the memorandum of appeal within a month. The file of this appeal shall be sent down to the court concerned within a week.