Teja Singh, J.
1. The point involved in this appeal is short but in order to be able to appreciate it a brief story of the litigation should be given. The plaintiff and his brother brought a suit for a declaration that the sale of the land in dispute, made by one of their reversioners, for Rs. 3,000 was not binding upon them. The suit was dismissed in view of the terms of the compromise arrived at between the plaintiffs and the defendants. One of the terms of the compromise was that the land in dispute would be regarded as mortgaged with the defendants on behalf of the plaintiffs and the latter would be entitled to get it back on payment of Rs. 2,460. The plaintiff's brother died in the meanwhile and the plaintiff alone brought a suit for possession of the land. He paid court-fee of Rs. 4-20, calculated on ten times the land revenue of the land and showed the value of the suit for purposes of jurisdiction at Rs. 152-5-6. The defendants resisted the suit both on merits and on technical grounds. Their technical objections were that the suit being one for redemption and the principal amount charged on the mortgaged property being Rs. 2,460, court-fee should have been paid on that amount and the value of the suit for purposes of jurisdiction was also Rs. 2,450. The Subordinate Judge accepted the technical objections of the defendants and ordered court-fee to be paid on Rs. 2,460. After deficiency in the court-fee had been made up, the plaintiff was asked to amend the plaint so as to bring it in a proper form prescribed for a suit for redemption. Eventually, the plaintiff's suit was dismissed on merits. Against this decree the plaintiff preferred an appeal to the District Judge and paid court-fee of Rs. 4-2-0 on the memorandum of appeal. The District Judge held that court-fee was payable on rs. 2,450 and ordered deficiency to be made up by 7th June 1946. Since the plaintiff failed to make up the deficiency the appeal was rejected. The plaintiff has now come to this Court in second appeal and it is contended on his behalf (1) that the valuation of the suit for purposes of court-fee as determined by the Sub-Judge was erroneous, and (2) that the court-fee paid by the appellant on the memorandum of appeal in the District Judge's Court was proper.
2. To start with it may be pointed out that according to Section 12, Court-fees Act the decision of the trial Sub-Judge on the question of court-fee is final and it is not open to the appellant to question it. The appellant's counsel contended that according to Sub-section (a) of Section 12, this Court was quite competent to hold that the finding of the; trial Sub-Judge was wrong. But the words of the sub-section go to show that this could only be done if the Court came to the conclusion that the question was wrongly decided by the Court below to the detriment of revenue and not when lit is contended that more court-fee than was Ipayable under law was demanded.
3. Then the appellant's counsel has not been able to convince us that the court-fee in appeal was leviable on ten times the land revenue. He relied upon Clause 5 of Section 7. But the present was not a suit under that clause but under Clause 9 of Section 7. I agree with the counsel that court-fee in appeal is payable ad valorem on the subject-matter of appeal, according to Article 1 of Schedule 1, but in order to determine what the value of the subject-matter is we must turn to Clause 9 of Section 7. It is quite correct that when the subject-matter of appeal is different from that of the suit, court-fee payable in appeal must also be different and should be calculated on the subject-matter of appeal regardless of the value of the subject-matter of the suit.
4. But when the subject-matter of the appeal is the same as that of the suit, the court-fee payable in appeal must also be the same. Reference in this connection might be made to the following observations appearing in Har Lal v. Siri Ram A.I.R.1931 Lah. 633:
The court-fee payable on a memorandum of appeal is determined by the value of the subject-matter of the appeal. It seems to me that a suit may change its nature in appeal and though the original suit may be for redemption there may be no question raised in appeal as to the right to redeem and the appeal may be merely in respect of the amount which the Court of first instance has held to be payable. In such a case the subject-matter of the appeal would clearly not be the same as in a suit falling within the provisions of Clause (ix) of Section 7, but court-fees would be payable ad valorem on the sum in dispute in aooordanoe with the provisions of Article I of Schedule 1, Court-fees Act. If the suit were, however, dismissed, the plaintiff appellant would be entitled to prefer an appeal, the value of which for purposes of court-fee should be computed in accordanoe with Clause (ix) of Section 7, Court-fees Act i.e., according to the principal money expressed to be secured by the instrument of mortgage for in that case the subject-matter in appeal would be the right to redeem.
5. I respectfully agree with these observations and hold that the District Judge was right in calling upon the appellant to pay court-fee on Rs. 2,460.
6. Then it was urged by the appellant's counsel that since the District Judge had allowed the appellant to make up the deficiency of court-fee till 7th June 1946 the appeal could not be rejected on that day. His argument was that it was open to the appellant to pay the proper court-fee till the end of the day and the order dismissing the appeal having been passed during the day was illegal. I have no hesitation in coming to the conclusion that the contention is wholly devoid of force, because though the appellant could make up the deficiency of court-fee till the time the Court rose for the day, there is nothing on record to show that he expressed ibis readiness to do so. Nor is it contended before us that he requested the District Judge to grant him any time. The order of the District Judge is to the effect that the appellant failed to make up the deficiency in court-fee stamp. This means that when the case was called and the appellant was asked whether he had made up the deficiency or was going to make it up, he must have replied in the negative.
7. In the view that I take I must hold that the order rejecting the appeal was justified.
8. Last of all, the counsel urged that even though the time originally fixed by the District Judge for making up the deficiency of court-fee had expired, we should extend the time under Section 149, Civil P.C., and accept the deficiency in court-fee here. In view of the appellant's conduct and his deliberate refusal to make up the deficiency, during the time granted to him for this purpose, I do not think we can accept this prayer.
9. In the result I would dismiss the appeal with costs.