1. The subject-matter of the litigation which has culminated in this appeal is immoveable property of considerable value, comprised: in a mortgage-security executed by the plaintiffs in favour of the first two defendants. A decree was made on the basis of the mortgage on the 31st August 1916 and an appeal to this Court was dismissed on the 22nd March 1918. The case for the plaintiffs is that, after the disposal of the appeal, there was an adjustment of the decree and that in contravention of such adjustment, the decree was fraudulently executed with the result that the mortgaged properties were brought to sale. It is asserted that they were purchased by the decree-holders in the name of the fourth defendant. Subsequently, on an application made on the 21st January 1920, a personal decree was made in due course on the 17th June 1920. The plaintiffs seek to have a two-fold declaration, namely, first, that their title to the mortgaged properties has not been affected by the execution proceedings which they contended were void and no better than a nullity; and, secondly, that if this view be correct, no personal decree could have been made against them. One of the objections taken by the defendants is that the, suit has not been properly, valued and that proper Court-fees have not been paid on the plaint. The Subordinate Judge has held that this objection is well-founded. But though he has found this issue against the plaintiffs, he has not called for deficit Court-fees, as, in his opinion, the suit is otherwise barred by specific rule of law. He has proceeded to hold that the suit is barred by limitation as also by the provisions of Section 47 and Order XXI, Rule 92, Civil Procedure Code. In this view he has dismissed the suit. The plaintiffs have appealed against this decree.
2. We are of opinion that the view taken by the Subordinate Judge that the suit has not been properly valued and that proper Court-fees have not been paid cannot be supported. When we look at the plaint, the suit appears to us to be substantially suit for possession of land within the meaning of Section 7, Clause 5, Sub-clause (a) of the Court Fees Act, 1870. Under that provision of the law, iii a suit for possession of land, the amount of Court-fee payable is according to the value of the subject-matter, and where, the subject-matter is laud which forms au entire estate or a definite share of an estate paying an annual revenue to the Government and such revenue is permanently settled, the value is deemed to be ten times the revenue so payable. The plaintiffs allege in their plaint that although the estimated market-value of the subject-matter of the litigation is Rs. 16,673; ten times the revenue payable is Rs. 794-5-3 and they have paid Court-fees on this sum. It has been argued, however, on behalf of the respondents that the suit falls within the description of a suit to obtain a declaratory decree where consequential relief is prayed for, within the meaning of Section 7, Sub-section (4), Clause (c) of the Court-Fees Act, 1870, and in support of this contention reference has been made to the case of Ganesh Bhagat v. Sarada Prasad Mukerjee 30 Ind. Cas. 111 : 42 C. 370 : 19 C.W.N. 895. In our opinion, this contention is not well-founded.
3. The plaintiffs do not seek to set aside the decree nor do they seek to obtain a declaratory decree with consequential relief. Their contention is,--it is not necessary for us to express an opinion upon the question whether such a contention may be established in fact or in law--that although the decree was validly made, the circumstances which led up to the sale held at the instance of the decree-holders could not in law pass their title to the execution purchaser, and on this basis, they seek to recover possession of the property. No doubt, they seek a declaration that the personal decree could not have been made against them. This declaration, however, can only be consequential to the success of their substantial claim in the suit. Their contention is that a personal decree can be made under Order XXXIV, Rule 6 of the Code, only if there has been a valid and operative sale which has led to a partial satisfaction of the amount due under the mortgage-decree. We hold accordingly that the suit was properly valued and that the plaint was adequately stamped.
4. We desire to point out that even if the view taken by the Subordinate Judge had been well-founded, the course pursued by him was contrary to the provisions of Order VII, Rule 11, Civil Procedure Code. The provisions of this rule are mandatory, and they require that where a plaint is written upon paper insufficiently stamped, the Court is bound to give the plaintiff time to make good the deficiency: Achut Ramchandra v. Nagappa 21 Ind. Cas. 337 : B. 41 : 15 Bom. L.R. 902 and Ram Sahay Ram Pandey v. Kumar Lakshmi Narain Singh 42 Ind. Cas. 675 : 3 P.L.J. 74 : 5 P.L.W. 18 The fact that the objection is heard at a time subsequent to the registration of the suit is immaterial, because the provisions of this rule can be brought into operation at any stage of the suit : Kishore Singh v. Sabdal Singh 12 A. 553 : A.W.N. (1889) 185 : 6 Ind. Dec. (N.S.) 1097; Venkatesa Tawker v. Ramasami Chettiar 18 M. 338 : 6 Ind. Dec. (N.S.) 585 ; Brahmomoyi Dasi v. Andi Si 27 C. 376 : 14 Ind. Dec. (N.S.) 249 and Padmanund Sing v. Anant Lal Misser 34 C. 20 : 4 C.L.J. 421 : 11 C.W.N. 38 : 1 M.L.T. 335 (F.B.). In this view, it follows that as soon as the Subordinate Judge held that the plaint was not adequately stamped, he should have proceeded to act in accordance with the provisions of Order VII, Rule 11; upon the failure of the plaintiffs to carry out his order, he should have rejected the plaint and not dismissed the suit.
5. The result is that this appeal is allowed, the decree of the Subordinate Judge stet aside and the case remitted to him for trial on the merits. In view of the grave allegations made in the plaint, we direct that the facts be first investigated on the evidence before the questions of law are considered, Costs will abide the result. We direct, under Section 13 of the Court Fees Act, that the Court-fees paid on the memorandum of appeal be returned to the appellant.