Alfred Henry Lionel Leach, C.J.
1. In O.S. No. 409 of 1905 of the Court of the District Munsif of Srivilliputhur the appellant obtained a mortgage decree in respect of the western portion of a house and at the subsequent sale in execution became the purchaser thereof. The respondent in the appeal held a second mortgage over the whole house. On the 8th March, 1924, the appellant obtained symbolical possession of the western half. In 1914, the respondent obtained a mortgage decree in respect of the whole house, and in execution thereof caused it to be sold. He was himself the purchaser, but his purchase was, of course, subject to the appellant's right and therefore was only effective with regard to the eastern half. The respondent was in physical possession of the whole of the property throughout and in spite of the fact that the appellant had been put in symbolical possession of his half of the property refused to allow him to enter into physical possession of his portion. The result was that the appellant brought suit No. 255 of 1927 in the Court of the District Munsif for partition of the property and possession of his half share. In his plaint he averred that the respondent was in wrongful possession and enjoyment of the whole house. Notwithstanding the nature of the suit the appellant stamped his plaint with a stamp of the value of Rs. 15 under Article 17-B of the Court-Fees Act, as amended by the Madras Act V of 1922. Article 17-B is a residuary article. It states that the fee on a plaint or memorandum of appeal where, it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act shall be Rs. 15 in a suit in a District Munsif's Court. The respondent raised the question of the stamping of the plaint contending that the suit should have been valued according to the market value of the house under the provisions of Section 7(v) of the Act. The District Munsif decided the question in favour of the appellant and decreed the suit. The respondent appealed to the Subordinate Judge who by an order dated the 8th December, 1931, held that the District Munsif was wrong and should have required the suit to have been stamped ad valorem on Rs. 2,500, the market value of the house.
2. On this valuation the proper court-fee was Rs. 224-15-0. The memorandum of appeal had only been stamped to the value of Rs. 15 and therefore there was a deficiency of Rs. 209-15-0. The Subordinate Judge gave the respondent a week's time in which to pay this deficiency and as he failed to comply with the order dismissed the appeal. The Subordinate Judge also took up the question of the stamping of the plaint and held that the District Munsif should have required the plaintiff to pay an ad valorem fee of Rs. 224-15-0. The Subordinate Judge called upon the appellant to pay the deficiency and gave him three days' time to comply with the order. As the appellant failed to comply, the Subordinate Judge dismissed the suit under the provisions of Section 12(ii) read with Section 10(ii) of the Court-Fees Act. The present appeal is against that order.
3. The appeal first came before Venkataramana Row, J., who considered that it raised a question of some importance and consequently it has been placed before a Bench. We have no doubt that the Subordinate Judge was right in holding that the plaint should have been stamped under the provisions of Section 7(v). The suit was in truth and in fact a suit for possession against a person in wrongful possession of the property. Not only was possession sought, but a decree for mesne profits was also asked for by the appellant, who expressly averred in his plaint that his claim to be put in possession of his half of the house had been wrongfully refused. The appellant was in possession of no portion of the property. In these circumstances Section 7(v) of the Act applied, and not Article 17-B.
4. The learned advocate for the appellant has asked us to give him a further opportunity of paying the deficiency in the stamping of the plaint. The learned advocate for the respondent has made a similar request with regard to his appeal to the Subordinate Judge. He asks that he may be given an opportunity of paying the deficiency and having his appeal heard on the merits. We consider that justice will be done if we accede to both these requests. The appellant will be given a fortnight's time in which to pay the court-fee of Rs. 209-15-0 being the difference between the proper court-fee of Rs. 224-15-0 and Rs. 15 which was actually paid on the plaint. If the amount, is paid within the time the respondent will be given a further three days in which to pay the deficiency on his memorandum of appeal, namely, Rs. 209-15-0. If he does so, his appeal will be restored to the list and heard on its merits. The appellant has stamped his appeal to this Court with a fee of Rs. 15. The proper court-fee should have been Rs. 23-9-0. There is therefore here a deficiency of Rs. 8-9-0. The learned advocate for the appellant has undertaken to pay this amount. This must be paid within one week. Failure to pay this amount within the time will mean that the second appeal will stand dismissed. Each party will pay his own costs.