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Prag Vs. Bhagwan DIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All734
AppellantPrag
RespondentBhagwan DIn and ors.
Excerpt:
- - the appellant must make good the deficiency of rs......plaintiff, the court-fee would be on the amount in dispute. the taxing officer relias on the fall bench decision in raghubir prasad v. shankear bakhsh singh (1914) 36 all. 40. the question is whether the case is covered by the pull bench ruling. there appears to me no doubt that it is. that was a case of cross-objections by the defendant asking that a foreclosure decree should be set aside and the suit dismissed, section 7(ix) of the court pees act was relied on. the full bench held that the fee prescribed by section 7(ix) applies only to the suit which is instituted in the court of first instance. 'in the case of an appeal the court-fee payable is an ad valorem court fee on the value of the subject-matter of the appeal - see schedule 1, article 1 of the court fees act.' it is true that.....
Judgment:

Daniels, J.

1. This is a reference under Section 5 of the Court-fees Act. The question for decision is the amount of fee payable on a memorandum of appeal by a plaintiff whose suit for foreclosure of a mortgage has been dismissed. Tan appellant relies on an elaborate judgment of the Judicial Commissioner's Court of Oudh in Sangat Bakhsh v. Rawat Dijdeo Bakhsh A.I.R. 1922 Oudh 82 where it was held that in such a casa the Court-fee payable in appeal is the same as court-fee payable in the Court of first instance, and if the appeal was against a decree in favour of the plaintiff, the Court-fee would be on the amount in dispute. The Taxing Officer relias on the Fall Bench decision in Raghubir Prasad v. Shankear Bakhsh Singh (1914) 36 All. 40. The question is whether the case is covered by the Pull Bench ruling. There appears to me no doubt that it is. That was a case of cross-objections by the defendant asking that a foreclosure decree should be set aside and the suit dismissed, Section 7(ix) of the Court Pees Act was relied on. The Full Bench held that the fee prescribed by Section 7(ix) applies only to the suit which is instituted in the Court of first instance. 'In the case of an appeal the Court-fee payable is an ad valorem Court fee on the value of the subject-matter of the appeal - see Schedule 1, Article 1 of the Court Fees Act.' It is true that they were dealing with cross-objections by the defendant and not with an appeal by the plaintiff, but the principle on which their decision rests is equally applicable to both cases, I cannot, therefore, treat their remarks as a mere obiter dictum which I am at liberty to disregard. It has been suggested that I should refer this case to a larger Bench with a view to reconciling the view of the law taken in this province with the view taken is Oudh, but I am not prepared to unsettle the law as laid down by a Full Bench nearly twelve years ago. If the law is to be altered, it must be left to the legislature to do it. I accordingly hold that the report of the office is correct. The appellant must make good the deficiency of Rs. 346-12-0 within two months from this date.


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