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Lalta Prasad and ors. Vs. Sheoraj Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1917All158(2); 41Ind.Cas.346
AppellantLalta Prasad and ors.
RespondentSheoraj Singh and ors.
Excerpt:
appeal - court-fee--mortgage--redemption suit--preliminary decree declaring plaintiff's right to redeem, appeal against--decree on accounts, appeal against--consolidation of appeals. - - when the amount is ascertained, i will fix the time within which the deficiency should be made good......and that he ought not to be penalized thereby and made to pay court-fees a second time. the first appeal filed is now pending, and, in my opinion, the two appeals should be considered as one and full amount of court-fee realized as if the two appeals were one appeal. the amount which the court below has found to be due to the submortgagee is a sum t of ra. 85,322. the court has ordered that the amount due from the mortgagor shall be devoted first of all to the satisfaction of the sub mortgage. it is obvious that if the sum found due to the sub-mortgagee has been correctly ascertained, the amount payable by the mortgagor, even if the appeal succeeds as to the amount, will not satisfy the sub-mortgage. therefore in calculating the value of the appeal the sum which has been found to be due.....
Judgment:

Tudball, J.

1. (February 15th, 1917.)---The facta of this case may be briefly stated as follows. The plaintiff-respondent brought a suit for redemption of a mortgage. The suit was resisted by the present appellant, who denied the plaintiff's right to redeem and also challenged the amount on which redemption was sought. The Court below held that the plaintiff had the right to redeem and directed that the accounts be taken. The defendant appealed against that decree. He paid the necessary Court-fees and the appeal was admitted. The Court below has now gone into the accounts and has found a sum of about Rs. 37,000 to be due The defendant has again appealed and he claims a sum of about Rs. 51,000. He has filed his appeal on a two-rupee stamp. The office reports that the Court-fee is the ad valorem fee on the value of the appeal. The only argument before me is that the appellant has had to appeal once against the preliminary decree, that it was the fault of the Court below in passing this preliminary decree in two parts and that he ought not to be penalized thereby and made to pay Court-fees a second time. The first appeal filed is now pending, and, in my opinion, the two appeals should be considered as one and full amount of Court-fee realized as if the two appeals were one appeal. The amount which the Court below has found to be due to the submortgagee is a sum t of Ra. 85,322. The Court has ordered that the amount due from the mortgagor shall be devoted first of all to the satisfaction of the sub mortgage. It is obvious that if the sum found due to the sub-mortgagee has been correctly ascertained, the amount payable by the mortgagor, even if the appeal succeeds as to the amount, will not satisfy the sub-mortgage. Therefore in calculating the value of the appeal the sum which has been found to be due to the sub-mortgagee must not be taken into consideration. The office will calculate the fee payable on the appeal as if the two appeals were one. The sum already paid will be deducted and the balance only will be recoverable. Let the office submit a report on this basis. When the amount is ascertained, I will fix the time within which the deficiency should be made good.

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