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ishwar Dayal Vs. Anna Saheb and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All100; 152Ind.Cas.814
Appellantishwar Dayal
RespondentAnna Saheb and ors.
Excerpt:
- - he also attacked the finding of the lower court in so far as that court held that the plaintiff was entitled to have the mortgaged property sold subject to the prior encumbrance under the mortgage deed, dated 24th june 1923, which the defendant had unsuccessfully characterised as invalid on certain grounds, which it is not necessary to mention in detail......the plaint it is prayed that the mortgaged property be sold subject to the charge arising from the prior mortgage of 24th june 1923. the plaintiff paid court-fee on the sum of rs. 2,06,091-10-3, alleged to be due under the puisne mortgage in suit. no separate court-fee was paid in respect of the prior mortgage. a question of court-fee arose in the lower court, and the learned subordinate judge decided that no separate court-fee was payable in respect of the prior mortgage. eventually the plaintiffs' suit was decreed in terms of the relief claimed by them. the defendant appealed to this court and impugned the entire decree. he also attacked the finding of the lower court in so far as that court held that the plaintiff was entitled to have the mortgaged property sold subject to the prior.....
Judgment:

1. This is an office report which raises the question of court-fee payable on the plaint and on the memorandum of appeal filed in this Court by the defendant-appellant. We refrain from expressing any opinion on the question of court-fee payable in appeal, as that matter will be disposed of by the taxing officer and, possibly* by the Taxing Judge. As regards the court-fee payable on the plaint, the matter has been judicially determined by the lower Court and should be disposed of by this Bench.

2. The suit, which has given rise to this appeal was brought by the plaintiffs-respondents for enforcement of a mortgage, dated 5th July 1924. The sum claimed under that mortgage was Rs. 2,06,091-10-3. In para. 7 of the plaint it was alleged that besides the mortgage in suit the plaintiffs had a prior charge under a mortgage deed, dated 24th June 1923. The principal sum advanced thereunder is said to be Rs. 65,000. In the concluding paragraph of the plaint it is prayed that the mortgaged property be sold subject to the charge arising from the prior mortgage of 24th June 1923. The plaintiff paid court-fee on the sum of Rs. 2,06,091-10-3, alleged to be due under the puisne mortgage in suit. No separate court-fee was paid in respect of the prior mortgage. A question of court-fee arose in the lower Court, and the learned Subordinate Judge decided that no separate court-fee was payable in respect of the prior mortgage. Eventually the plaintiffs' suit was decreed in terms of the relief claimed by them. The defendant appealed to this Court and impugned the entire decree. He also attacked the finding of the lower Court in so far as that Court held that the plaintiff was entitled to have the mortgaged property sold subject to the prior encumbrance under the mortgage deed, dated 24th June 1923, which the defendant had unsuccessfully characterised as invalid on certain grounds, which it is not necessary to mention in detail.

3. According to the office report, the plaintiff should have paid court-fee ad valorem not only on the mortgage money under the date in suit, but also in respect of the mortgage money due under the prior mortgage deed of 24th June 1923. The office report has been supported before us by the learned Government Advocate, who contends that the plaintiffs are, in effect, seeking a relief not only in respect of the subsequent mortgage, but also in respect of the prior mortgage and, should therefore pay separate court-fees on the amounts due under both the mortgages. We do not think that this contention is correct. The plaintiffs would have run a great risk if they had sued on the subsequent mortgage without making a mention of the existence of a prior encumbrance in their favour, to avoid a possible plea hereafter that the prior mortgage not having been specifically mentioned in the plaint the sale under the puisne mortgage should be considered to have been made free from the encumbrance under the deed of 24th June 1923. The plaintiffs therefore were advised to specifically refer in their plaint to the prior mortgage and claim the relief of sale of the mortgaged property subject to the prior mortgage, as in fact it is, assuming the prior mortgage is valid. In the plaint itself there is no allegation of anything which might indicate that the Validity of the prior mortgage is at all in question, though we have no doubt that the object of the plaintiffs was to have the matter settled once for all and therefore they made a prominent mention of the prior mortgage in their plaint, so that, if the defendants did not impugne it, they would be barred in any subsequent proceeding from challenging the validity of the prior mortgage. Beyond alleging the existence of the prior mortgage and claiming the relief of sale of the mortgaged property in enforcement of the subsequent mortgage subject to the prior encumbrance, the plaintiffs have not claimed any consequential relief. We think that the plaintiffs have claimed the mortgage money due under the puisne mortgage coupled with a declaration that the prior mortgage of 24th June 1923, is valid and binding on the defendants. In this view, the plaintiffs were not bound to pay court-fee ad valorem on the amount due under the prior mortgage. Taking para. 7 and the last paragraph of the plaint, in which relief is claimed, we think that the plaintiffs' suit should be considered to be one for recovery of money due under the subsequent mortgage and a declaration in respect of the prior mortgage. They were therefore bound to pay an additional court-fee of Rs. 10 which they have not paid. There is therefore a deficiency in court-fee to that extent, which should be paid within a month.


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