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Damodara Padhano Vs. Haribhandhu Patnaick - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1921Mad406; 70Ind.Cas.392
AppellantDamodara Padhano
RespondentHaribhandhu Patnaick
Cases Referred and Lakshmi v. Marudevi
Excerpt:
court fees act (vii of 1870), section 7(iv) - suit for accounts--appeal--valuation--court-fees--appeal from preliminary and final decrees. - - at the same time, it is undeniable that the date of the original decree and the valuation of the appeal are far more material than the grounds of this appeal for determining whether, the appeal is to be treated as one against the preliminary or the final decree or against both, and it was in that view that our judgment proceeded to find that the respondents before us bad in tie district court appealed only against the final decree. it was argued before the full bench that, as sub-section (iv) of section 7 of the court-fees act differs from, other sub-sections in that it refers, to the memorandum of appeal as well as to the plaint, the appellant..........it was competent for the appellant to prefer a single combined appeal against the preliminary and final decrees if the dates permitted him to do so;2. that the grounds of appeal to the district court referred to both the preliminary and final decrees;3. that the court-fee calculated upon the amount ascertained and embodied in the final decree was sufficient to enable the appellants to appeal against the preliminary decree also.4. the first two contentions are right and do not require to be refuted. the first is supported by the decision of balwantsing ramchandra v. sakharam mancharam 33 ind. cas. 137 note; daitatraya v. ajmuddin 33 ind. cas. 146 . in our judgment, which is sought to be reviewed, it was conceded that the appellant in the district court was entitled to appeal from both.....
Judgment:
ORDER

Spencer, J.

1. At the hearing of this application, to review the judgment given by Mr. Justice Bakewell and myself in Second Appeal No. 1928 of 1918 it was argued.

1. That it was competent for the appellant to prefer a single combined appeal against the preliminary and final decrees if the dates permitted him to do so;

2. That the grounds of appeal to the District Court referred to both the preliminary and final decrees;

3. That the Court-fee calculated upon the amount ascertained and embodied in the final decree was sufficient to enable the appellants to appeal against the preliminary decree also.

4. The first two contentions are right and do not require to be refuted. The first is supported by the decision of Balwantsing Ramchandra v. Sakharam Mancharam 33 Ind. Cas. 137 note; Daitatraya v. Ajmuddin 33 Ind. Cas. 146 . In our judgment, which is sought to be reviewed, it was conceded that the appellant in the District Court was entitled to appeal from both decrees and that he was not too late when he appealed against the final decree to appeal also against the preliminary decree. It was also conceded that the District Judge might have had regard to the nature of the grounds of appeal as stated in the appeal memorandum. At the same time, it is undeniable that the date of the original decree and the valuation of the appeal are far more material than the grounds of this appeal for determining whether, the appeal is to be treated as one against the preliminary or the final decree or against both, and it was in that view that our judgment proceeded to find that the respondents before us Bad in tie District Court appealed only against the final decree.

4. The third contention cannot stand in face of the decision in Srinivasacharlu v. Perindevamma 33 Ind. Cas. 602 which decided that, if the appeal in a suit for accounts is from the whole decree, the appellant is bound by the plaintiff's valuation in the plaint. This is a Full Bench decision of this Court which followed Samiya Mavali v. Minammal 23 M. 490 and I am bound by it. It was argued before the Full Bench that, as Sub-section (iv) of Section 7 of the Court-Fees Act differs from, other sub-sections in that it refers, to the memorandum of appeal as well as to the plaint, the appellant was at liberty to value the appeal as he pleased, but their Lordships did not accept that argument. Reference under Court-Fees Act, 1870 (5) and Kesavarapu Ramakrishna Reddi v. Kotta Kota Reddi 30 M. 96 ; Subramania Chettyar v. Palachakrapani. Chettyar (1913) M.W.N. 140 and Lakshmi v. Marudevi 12 Ind. Cas. 664being cases which dealt with the valuation of appeals in suits based on mortgages, have no application to the valuation of appeals in suits falling under Sub-section (iv) of Section 7. In the Allahabad High Court there is a decision of a Single Judge in Bhola Nath, In the matter of 6 Ind. Cas. 832 , which takes a different view of Section 7, Court-Fees Act, from that taken by this High Court, but I must follow the ruling of the Full Bench.

6. I am told that the practice in the office is to collect only one fee for an appeal against both the preliminary and the final decrees according to the value of the subject matter in dispute in the appeal. If the practice of the Court is in any way opposed to the ruling of the Full Bench, it cannot be taken as a guide for deciding the point which has now arisen. If the amount ascertained to be due when the final decree is passed is greater than the amount at Which the plaintiff valued his relief in the first instance and if the Court-fees on the appeal against both the preliminary and final decrees are paid on the larger amount, it would be reasonable to treat the greater as including the lesser amount; but in the present case the relief sought was valued in the plaint as at Rs. 2,600 and the amount decreed in the final decree was Rs. 353-8-0 and, although this latter amount was on a petition corrected into Rs. 2,860, the appellant in the District Court, who presented his appeal on 10th September 1917 before the amendment was made on 26th September 1917, paid Court-fees on Rs. 353 only. It seems obvious from this fact that no competent appeal was presented within the limitation period against the preliminary decree and this being so the review petition must fail. I dismiss it with costs.


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