R.N. Misra, J.
1. This revision application challenges the order of the appellate Court below calling upon the petitioners who are appellants before him to paydeficit court-fee on the memorandum of appeal. The appeal before the lower appellate Court is directed against a final decree in a suit for partition. The appellants valued the appeal in the same manner as the suit and paid the fixed court-fee payable on a memorandum of appeal arising out of a suit for partition. The learned appellate judge upheld the objection raised in his Court that the proper court-fee had riot been paid and required ad valorem court-fee to be paid on the memorandum of appeal. Aggrieved by that direction, the appellants before the lower appellate Court are before this Court in revision.
2. At one stage, when the preliminary decree was being assailed in second appeal I was appearing for some of the parties and normally I would have directed this revision to be placed before some other learned Judge for hearing. The learned counsel for the parties, however, assured me that they have no objection if I deal with the matter particularly because now the dispute is in relation to the court-fee payable on the memorandum of appeal. In view of what was stated at the Bar, I heard the matter.
3. The question that has been raised seems to be absolutely not in dispute so far as this Court is concerned. As early as 1951 in AIR 1952 Orissa 113 (Chaitan Senapati v. Mani Bewa). Jagannadhadas. J., as his Lordship then was, directly dealt with a case of this type and indicated the principle that applies when the question of payment of court-fee on a memorandum of appeal arising out of a suit for partition comes to be determined. The petitioner's learned counsel has referred to a later decision of the Andhra Pradesh High Court in AIR 1957 Andh Pra 776, (D. Satyanarayana Murthi v. D. Bhavanna) where after extracting from earlier Madras decisions and according approval to the Orissa case Umamaheswaram, J. indicated the law in support of the petitioner's stand. In this Court my learned brother. A. Misra, J. had to deal with similar points upon reference made to him as the Taxing Judge. In AIR 1969 Orissa 167, (Hari v. Pranabandhu) and AIR 1969 Orissa 265 (H. Lakshminarayana v. P. Saraswati) the view expressed in AIR 1962 Orissa 113 has been reiterated. Mr. Ramdas for the opposite party relied upon a single Judge decision of the Kerala High Court to support the order of the lower Court. It appears that a later Kerala decision has reversed the earlier view.
4. There is a good principle behind these decisions namely, that even if upon subsequent determination by the time the appeal comes to be instituted the litigation is capable of being valued, one has to look at the nature of the litigation and if the suit out of which the appeal arises was incapable of valuation, Article 17-A of the Schedule II of the Court-fees Act applies; and, therefore, in spite of the fact that the appeal is capable of valuation, the fixed court-fee prescribed under that Article is still payable. In the circumstances the petitioner's stand is correct. Court-fee payable on the memorandum of appeal before the lower appellate Court continues to be the fixed court-fee payable on the plaint in the suit for partition, that is, Rs. 22,50. The demand of extra court-fee seems to be without authority of law. I would accordingly allow the revision petition, vacate the impugned order and hold that the court-fee paid on the memorandum of appeal is sufficient. I would direct the parties to bear their own costs in this Court.