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Chiddu Singh and ors. Vs. Jhanjhan Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All261; 80Ind.Cas.1021
AppellantChiddu Singh and ors.
RespondentJhanjhan Rai and ors.
Cases ReferredGopikishen v. Sorabjee
Excerpt:
court fees act (vii of 1870), section 7(ix) civil procedure code (act v of 1908), order xxxiv, rule 9 - redemption suit--surplus profits, claim to recover--court-fee payable. - .....the mortgagee to pay the said amount to the mortgagor. the suit however in every respect was a suit for redemption. under section 7 clause (9) of the court fees act the amount of court-fee payable in respect of a suit for redemption is to be calculated on the principal sum secured by the mortgage. therefore, in accordance with the terms of the court-fees act the court-fee payable would be regulated by the principal amount secured by the mortgage. this was the view taken by this court in the case of husain khanam v. husain khan 29 a. 471 : a.w.n. (1907) 183 : 4 a.l.j. 375. a similar view was taken in the case of gopikishen v. sorabjee 68 ind. cas. 226 : (1922) a.i.r. (n.) 262. our attention has not been drawn to any ruling in which a contrary view has been taken. it is true that in a.....
Judgment:

1. An office report has been put up before us, in which it is stated that the amount of Court-fee paid on the plaint was insufficient and that a further sum of Rs. 385 was payable on the plaint. Dr. Agarwala disputes the correctness of the office report and we have therefore to decide whether the amount of Court-fee payable on the plaint was or was not sufficient. The suit was one for redemption of a mortgage made in 1863. The principal amount secured by the mortgage was Rs. 960. It provided that the mortgagee was to remain in possession, appropriate the usufruct, deduct out of it the amount of interest payable on the mortgage which was at the rate of fifteen annas per cent. per mensem, and appropriate the balance towards the principal. The mortgagors remained in possession of a part of the property upon an undertaking to pay a rent for that p Article In the present suit the plaintiffs sought to redeem the mortgage on the allegation that the full amount of the mortgage including interest had been discharged by the usufruct and that a surplus of Rs. 7,533-12 9 was due to the plaintiffs by the mortgagee. The plaintiffs accordingly claimed redemption and also asked that the defendant mortgagee be directed to pay to the plaintiff the aforesaid amount Court fee was paid upon Rs. 960, the principal amount of the mortgage in accordance with the provisions of Section 7, Clause (9) of the Court Fees Act. A dispute was raised in the Court of first instance as to the adequacy of the amount of the Court fee, but that Court held that the amount paid was sufficient. The plaintiffs obtained a decree from the Court of first instance for redemption subject to the payment of a certain amount to the mortgagee which that Court found to be due to the latter. The plaintiffs appealed in respect of that amount to the lower Appellate Court and that Court varied the amount. From this decree of the lower Appellate Court the present appeal has been prepared. The appeal raises a question as to jurisdiction and apparently as to the amount due. But the Office reports that Court-fee ought to have been paid on the Rs. 7,533-12-9 in addition to the Court-fee paid in respect of the principal amount of the mortgage.

2. In our opinion the report is not correct. The suit is one for redemption as contemplated by Order XXXIV of the Code of Civil Procedure. Under Rule 9 of that order upon a decree for redemption being made the Court may order an account to be taken and if in the result any sum be found due by the mortgagor the Court should order the mortgagor to pay that amount within a time fixed by the Court. Similarly if any amount be found due to the mortgagor as surplus mesne profits the Court should direct the mortgagee to pay the said amount to the mortgagor. The suit however in every respect was a suit for redemption. Under Section 7 Clause (9) of the Court Fees Act the amount of Court-fee payable in respect of a suit for redemption is to be calculated on the principal sum secured by the mortgage. Therefore, in accordance with the terms of the Court-Fees Act the Court-fee payable would be regulated by the principal amount secured by the mortgage. This was the view taken by this Court in the case of Husain Khanam v. Husain Khan 29 A. 471 : A.W.N. (1907) 183 : 4 A.L.J. 375. A similar view was taken in the case of Gopikishen v. Sorabjee 68 Ind. Cas. 226 : (1922) A.I.R. (N.) 262. Our attention has not been drawn to any ruling in which a contrary view has been taken. It is true that in a certain number of cases it has been held that if a dispute arises in appeal, as to the amount payable by or to the plaintiff the appeal should be valued with respect to the amount claimed by the appellant and ad valorem Court-fee ought to be paid on that amount, that is not the question put before us. The only question we have to decide is whethher when a suit is brought for redemption and a certain amount is claimed as surplus mesne profits the plaintiff is bound to pay Court-fee upon the surplus amount claimed in addition to the Court-fee on the principal amount secured by the mortgage. This question was decided in the oases to which we have referred and in these cases it was held that the suit being a suit for redemption Court-fee was payable upon the principal amount secured by the mortgage. We agree with the view taken in these rulings which have as far as we are aware, not been dissented from by this Court or any other Court. In any case we feel ourselves bound to follow it and hold that the amount of Court-fee payable upon the plaint was rightly paid with reference to the principal amount secured by the mortgage.


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