1. The question which arises in this application is whether or not the learned District Judge was right in returning the memorandum of appeal, in an execution matter to the judgment-debtor-appellant for presentation to the High Court. The suit out of which the execution matter arose was one to enforce payment of a mortgage by sale of the mortgaged property. The plaintiff valued his suit at Rs. 1,945. In the suit he claimed to recover his own mortgage for Rs. 1,000 together with interest thereon, and also stated that he wished to redeem two prior mortgages for the aggregate sum of about Rs. 15,000 if the debt were found to be due. A decree was given in favour of the plaintiff for the sale of the property. The amount was directed to be paid by instalments. On failure to pay the instalments, the plaintiff was to have the right to redeem the two prior mortgages and to sell the property for their amount as well as the amount of his own mortgage. There was a condition that he must make good the deficiency in Court-fees Default was made and the plaintiff made good the deficiency, acquiescing in the order of the Court. After this was done, a question arose as to whether certain payments into Court had or had not been made within proper time. These objections were raised on behalf of the judgment-debtors. They were overruled by the Court of first instance and the judgment-debtor preferred an appeal to the District Judge against this ruling. The District Judge considered that the proper appellate Court was the High Court and not the District Judge. He accordingly returned the memorandum of appeal for presentation to the High Court. The applicant here contends that valuation of his suit, that is, the original suit, was Rs. 1,945, and not the valuation after the deficiency had been made good. Section 21 of Act XII of 1817 provides as follows: 'Save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made, did not exceed Rs. 5,000 and to the High Court in any other case.'
2. The question really is what was the value of the suit. If the value of the suit was only Rs. 1,945, as contended by the applicant then the appeal did lie to the District Judge and it makes no difference that the decree was a decree for a larger sum than Rs. 5,000. It is admitted by the learned Vakil of the applicant that if before the decree the Court had found that the suit was undervalued and the deficiency had been made good, then the value of the suit would be the value after the deficiency, had been made good and not the valuation which the plaintiff had originally placed, thereon. He argues that the decree of the Court ordering him to make good the deficiency before proceeding to sell the property for the aggregate amount of his own, and the prior mortgages, was conditional, and reliance is placed upon Madho Das v. Ramji Patak 16 A. 286. All that was decided, in that case was that the mere fact that a decree for a larger sum was made does not interfere with the original valuation of the suit. We quite agree with it. So long as there has been no order accepted by the plaintiff to make good the deficiency, the original value placed by the plaintiff must be taken as the value of the suit for the purpose of regulating the proper appellate Court, but we think that, when there has been such an order accepted by the plaintiff from that moment the value of the suit must be taken as being in accordance with the fee paid by the plaintiff. This view was accepted by a Full Bench of the Calcutta High Court in Ijjat-ulla v. Chandra Mohan Banerjee 34 C. 954 : 6 C.L.J. 255 : 11 C.W.N. 1133 (F.B.). We dismiss the application with costs.