1. Defendant No. 2 having obtained a decree against defendant No. 1, the undivided brother of the plaintiffs, attached a kanom of Rs. 400. Plaintiffs put in a claim which was allowed to the extent of Rs. 250 only. They then instituted the present suit to establish their right to four-fifths of the kanom amount. They obtained a decree in the Court of First Instance, and defendant No. 2 appealed. The District Judge, being of opinion that the proper stamp duty had not been paid, called upon defendant No. 2, the appellant, to pay additional Court-fees. This appears to have been done. Thereupon, the District Judge called upon the plaintiff's (respondents Nos. 1 to 4 in the lower Appellate Court) to show cause why they should not pay additional Court-fees. The plaint had been stamped with a Rs. 10 stamp, but the Judge was of opinion that ad valorem fees should be paid, and, as the plaintiffs failed to pay the same within the date fixed, he dismissed the suit. His order is supported on the ground that, by Section 12, clause ii, Act VII of 1870, the Court of Appeal was authorized to require the plaintiffs to pay the additional Court-fee, and, by Section 10, clause ii, was bound to dismiss the suit, inasmuch as the additional fee was not paid within the time fixed by the Court. This was the view taken by a Bench of the Calcutta High Court in Shama Soondary v. Hurro Soondary I.L.R. 7 Cal. 348 where the decision of the Appellate Court, on the question of the stamp duty, was undoubtedly correct. But the proper stamp duty, in the present case, where the plaintiffs sought to establish their title by getting the summary order set aside, was Rs. 10 under clause vi, Article 17, schedule II of the Court-Fees Act, Vithal Krishna v. Balkrishna Janardan I.L.R. 10 Bom. 610 and the order of the Judge calling upon the plaintiffs to pay ad valorem fees was wrong. Moreover, there is nothing to show that the order of the Judge was communicated to the plaintiffs, who, on the 26th March, filed an affidavit to the effect that they had, on that day, for the first time, received intimation of the orders of the Court. At the same time they put in a petition together with the required fee. Notwithstanding this, the Judge, on the 28th idem, dismissed the suit.
2. In any case the order dismissing the suit, while the appeal was still pending, was irregular.
3. The appeal is allowed, and the order of the Judge dismissing the suit is set aside with costs.