Charles Arnold White, Kt., C.J.
1. The plaintiffs sued for redemption. They valued their suit at Rs. 231-11-7 the amount they stated to be still due on the bond, but court fees amounting to Rs. 580 were levied from them with reference to Section 7, Clause IX, of the Court Fees Act, which makes fees leviable in suits against a mortgagee for the recovery of the property mortgaged upon the principal money expressed to be secured by the mortgage, in this case Rs. 13,500.
2. The plaintiffs got a decree for redemption upon payment of Rs. 231-11-7.
3. The defendant appealed and the original decree was modified by directing that the plaintiffs should pay Rs. 1,162-6-5, in addition to the amount fixed by the lower Court, Court fees were only paid on Rs. 1,162-6-5.
4. The plaintiffs and the defendant now prefer separate second appeals, the plaintiffs (mortgagors) valuing their second appeal at Rs. 1,162-6-5, while the defendant (mortgagee) values his second appeal at Rs. 10,000.
5. The mortgagee says he is not liable to pay court fees on Rs. 13,500, the amount of principal money secured by the mortgage, but only on the difference between the amount claimed by him; and the amount which, under the decree of the lower appellate Court, he has been held to be entitled to receive.
6. The morstgagor says he is not liable to pay court fees on Rs. 13,500, but only on Rs. 1,162, the amount which under the decree of the lower appellate Court, he has been held liable to pay in addition to the Rs. 231-11-7, which, under the decree of the Court of First Instance, he was held liable to pay.
7. I will take the case of the mortgagor appellant first. The question is - Is the fee payable by him governed by Section 7(c)IX of the Court Fees Act, or is it governed by Article 1 of the first schedule to the Act? If by the former, the fee is to be computed with reference to Rs. 13,500, the principal money expressed to be secured by the instrument of mortgage. If by the latter, the further question arises, do the words 'subject-matter in dispute' in the 2nd column of Article 1 of the 1st schedule mean subject-matter originally in dispute in the suit, or subject-matter in dispute in the appeal. I am of opinion that Article I of the 1st schedule applies, and that the words 'subject-matter in dispute' mean subject-matter in dispute in the appeal. I think it is clear that Article 1 applies unless it can be said that the matter is otherwise provided for in the Act. Now turning to Section 7, I find that in cases falling within Sub-section (e)IV, there is a special provision that the method of computation, for the purpose of a memorandum of 'appeal shall be otherwise,' that is to say, it is to be according to the Amount at which the relief sought is valued in the memorandum of appeal. There is no similar special provision with regard to cases falling within Section 7(e)IX. It seems to me that the word 'suits' in this sub-section cannot be construed as including appeals and that appeals (unless otherwise provided for) are governed by Article 1. The more natural construction of the words 'subject-matter in dispute' seems to me to read them, when a memorandum of appeal is concerned, as applying to the matter in dispute in the appeal. Section 16 seems to show that the general policy of the legislature was to make the value of the subject-matter in dispute in appeal the criterion for the purpose of computing the fee.
8. In Reference under Court Fees Act, Section 5 I.L.R. (1891) 14 M. 480, the question for decision was - ' In a suit to redeem a mortgage and to recover arrears of rent due by the mortgagee to the mortgagor on account of the mortgaged property, should the court fee to be levied be calculated according to the sum of the principal amount of the mortgage and arrears of rent, or according to the difference of those two items?' It seems to me that that decision does not cover the point raised in the present cases. The precise point was considered by the Chief Justice of the Allahabad High Court in the case of Nepal Rai v. Debi Parsad I.L.R. (1905) 27 A. 447 and he held that the fee was to be calculated with reference to the amount in dispute in the appeal. I agree with this decision. The case of Pirbhu Narain Singh v. Sita Ram I.L.R. (1890) 13 A. 94 is a decision the other way. Sir John Edge based his decision on the ground that the relief claimed by the mortgagor in appeal was a relief which it was impossible to value but that it would be otherwise if a mortgagee appealed on the ground that a larger amount was due than that which had been awarded. So far as the construction of the Act is concerned, I fail to see any good grounds for this distinction. I find myself unable to agree with the decision in the case of Umarkhan v. Mahomed Khan and Ors. I.L.R. (1885) 10 B. 41 which is in conflict with the recent decisions of the Allahabad High Court.
9. As to the appeal by the defendant, the mortgagee, I agree that one rule should apply in both cases, but it seems tome that, as a question of construction of the Act, the right rule to apply is that laid down in Nepal Rai v. Debi Prasad I.L.R. (1905) 27 A. 447 which so far as an appellant mortgagee is concerned, is in accordance with the opinion expressed by Sir John Edge in Pirbu Narain Singh v. Sita Ram I.L.R. (1905) 27 A. 447.
10. I think in the case of both appeals the fee is to be calculated with reference to the value of the subject-matter in dispute in appeal.
S.R. No. 13,337 of 1905.
11. For the reasons stated above, I think the fee is to be calculated with reference to the subject--matter in dispute in the appeal.
Subrahmania Aiyar, J.
11. I concur.