1. This is a reference by the Taxing Officer under Section 5, Court-fees Act. Broadly stated the facts are as follows: In Mortgage Suit No. 23/34 defendant 1 obtained a mortgage decree for a sum of Rs. 14,062-2-9 against the plaintiff's predecessor and his two brothers; in execution of the decree he sold the property which fell to the share of the plaintiff's predecessor first (as directed by the High Court) and purchased the same for Rs. 10,000; there was thus a balance of Rs. 4062-2-9 left in favour of defendant 1 under the decree; defendant 1 then sold to defendant 2 the purchased property as well as the decretal dues on 25th June 1940; defendant 2 thereafter sought to execute the decree for the balance outstanding; one of the brothers of the plaintiff's predecessor (defendant 4) thereupon filed a review petition under the Bengal Money-Lenders Act for reopening the decree, Misc. case No. 13 of 1941; pending the Misc. Case No. 13 of 1941 the plaintiffs' predecessor died but the plaintiffs were not substituted in his place and in their absence a new decree was passed in contravention of the provisions of the Bengal Money-Lenders Act; the plaintiffs then instituted Suit No. 47 of 1942 for reopening the original decree and getting relief in accordance with Section 36 of the said Act; this suit was decreed and a new decree was passed for Rs. 13,217-1-6 payable in 20 yearly installments of equal amounts and direction was given in the decree under Section 36(2)(c) for the restoration of possession of the auction purchased property to the plaintiff. Against this new decree defendant 2 preferred the present appeal questioning inter alia the validity of the decree, the direction for restoration of possession and the number of installments granted; the correctness of the amount of the decree, however, he has not challenged in the appeal.
2. The question before me now is what should be the proper amount of the court fees on the memorandum of appeal. It is contended by the learned advocate for the appellant that it is not possible to estimate the money value of the subject-matter of the appeal and that therefore he is liable to pay a fixed court-fee of Rs. 15 only under Schedule 2, Article 17, Clause (vi), Court-fees Act, which he has paid. On the other hand, the learned Government Pleader appearing for the Crown, contends that as the appellant seeks to get rid of the decree he should pay ad valorem fee in accordance with Schedule 1, Article. 1, Court-fees Act, on the decretal amount that in any event he should pay ad valorem fee upon the value of the property in respect of which there has been an order for restoration of possession to the plaintiff which the appellant wants to be revoked. It seems to me that the subject-matter in dispute is the property which the new decree directs to be restored to the plaintiffs. Grounds Nos. 9 and 11 of the memorandum of appeal run as follows:
IX. For that the decree having been once re-opened at the instance of Surendra Roy, the Court had no jurisdiction to re-open it once more.
XI. For that the learned Court below erred in directing restoration to the plaintiffs of the property sold in auction.
3. Clearly therefore the object of the appellant is not to give up possession of the property, that is his main purpose, and that he aims at in the appeal by attacking directly the order for restoration of possession of the property to the plaintiff, and by attacking indirectly the same order by challenging the validity of the decree itself which contains that order; if he succeeds in the appeal by either process, he retains the possession of the property; he must therefore pay ad valorem fee on the value of the property under Article 1, Schedule 1, Court-fees Act, i. e., on Rs. 10,000 for which the property has been sold at auction. The appellant accordingly must either make good the deficiency or delete the above-mentioned grounds as also the other grounds in the memorandum of appeal which relate to the setting aside of the decree and the order for restoration of possession of the property to the plaintiff and confine his appeal only to the question of the number of installments regarding which the court-fee paid is conceded to be sufficient. To do that I allow the appellant one month's time from this day; if the defect is not cured within the time allowed the appeal will be laid before a Division Bench for orders as being insufficiently stamped.