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Sailendra Kumar Palit and ors. Vs. Hari Charan Sadhukhan and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1931Cal159
AppellantSailendra Kumar Palit and ors.
RespondentHari Charan Sadhukhan and anr.
Cases ReferredNama v. Hari
Excerpt:
- .....the appeal is from an order passed in proceedings relating to the execution of a decree in a mortgage suit for sale. the claim at the date of the suit was laid at rs. 4,477-2-0. that was the amount of claim stated in the plaint which however contained prayers for interest pendente lite and costs, etc. the preliminary decree for sale was for rs. 6,357-7-0. the question is whether from an order passed in execution of such a decree an appeal lies to this court.3. there can be no question that if the value of the original suit in this case was less than rs. 5,000 the present appeal would lie to the district judge under section 20 (1) (a), bengal, n. w. p. and assam civil courts act 12 of 1887. it has however been contended on behalf of the appellant that though in the plaint only rs......
Judgment:

1. Of the objections that have been taken as regards the maintainability of this appeal the one that we are concerned with at this stage relates to its competency as lying in this Court as its forum.

2. The appeal is from an order passed in proceedings relating to the execution of a decree in a mortgage suit for sale. The claim at the date of the suit was laid at Rs. 4,477-2-0. That was the amount of claim stated in the plaint which however contained prayers for interest pendente lite and costs, etc. The preliminary decree for sale was for Rs. 6,357-7-0. The question is whether from an order passed in execution of such a decree an appeal lies to this Court.

3. There can be no question that if the value of the original suit in this case was less than Rs. 5,000 the present appeal would lie to the District Judge under Section 20 (1) (a), Bengal, N. W. P. and Assam Civil Courts Act 12 of 1887. It has however been contended on behalf of the appellant that though in the plaint only Rs. 4,477-2-0 was stated on the footing of the amount that was then due on the mortgage, the real claim was to get all that would be due up to the date of the decree. In other words it has been maintained that the value of the claim was only tentatively put down in the plaint because it was not possible for the plaintiff to know when the decree would be passed and what further amount would be due on the mortgage by that date. It has been contended that when the decree was passed it was found that Rs. 6,357-7-0 had become due to the plaintiff on the mortgage, and so, that should be taken as the real value of the claim, and consequently under Section 20 (1) (b), Bengal, N. W. P. and Assam Civil Courts Act 12 of 1887, the appeal would lie to this Court and not to the District Judge.

4. Reliance has been placed on behalf of the appellant upon three decisions of this Court : viz. Ijjatulla v. Chandra Mohan [1907] 31 Cal. 954; Bidyadhar v. Manindra Nath : AIR1925Cal1076 and Manmatha Nath v. Mati Lal : AIR1929Cal719 of which the first two are Full Bench decisions and the last one is the decision of a Division Bench. All these decisions relate to suits for recovery of possession with mesne profits which are governed by Section 7 (5) and Section 11, Court-fees Act 7 of 1870. The present case has no concern with those provisions of the law the cases cited therefore proceed on very different considerations. The present suit having been on for enforcement of a mortgage by a decree for sale does not fall within Section 7, paras. 5, 6, 9, or para. 10, Clause (d), Court-fees Act, and is a suit for which court-fees are payable ad valorem. In the case of Nama v. Hari [1905] 7 Bom. L.R. 194 it ap-pears to have been contended that a suit for recovery of the mortgage money which means principal and interest, falls within the provisions of Section 9, but this contention was overruled. under Section 8, Suits Valuation Act 7 of 1887, the value of this suit as determinable for the computation of court-fees and its value for the purposes of jurisdiction must be the same. We therefore think that the value of this suit must be taken to be the amount at which the claim was stated in the plaint and for which court-fees were paid, that is to say, Rs. 4,477-2-0.

5. For the above reasons we must hold that the appeal does not lie to this Court but to the District Judge.

6. We accordingly order that the memorandum of appeal be returned to the appellant for presentation to the proper Court. We decide no other question than what we have expressly done.

7. The respondents are entitled to their costs, 3 gold mohurs.


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