1. We have examined the prayers in the plaint and we are of opinion that although they have been worded as embodying reliefs which on the face of them appear to be of a declaratory nature, two at least of these reliefs are really consequential ones. We are of opinion that the reason of the decision of this Court in the case of Tara Prasanna v. Nrisingha Moorari Pal : AIR1924Cal731 fully applies to the present case, and the registrar is right in the view he has taken, namely that ad valorem Court-fees must be paid on the memorandum of appeal. He is also right in holding that the Court-fees paid on the plaint as well as on the memorandum of appeal which the plaintiff filed in the lower appellate Court were insufficient.
2. Then a question has been raised in view of Section 28, Court-fees Act, as to the propriety of the registrar's order calling upon the appellant to pay the deficit Court-fees on the plaint and on the plaintiff's memorandum of appeal to the lower appellate Court. It has been argued that there has been no reception or user in this Court of the aforesaid documents yet and therefore an order for their stamping with the requisite Court-fees cannot be passed; in other words, it is said that if and when the appeal is heard and those documents are sought to be used, and not till then, can an order of this description be made.
3. This contention seems reasonable enough, and were Section 28, Court-fees Act, the only section that was applicable to the present case, we would have been prepared to give effect to it. The present case, however, is one in which a plaintiff who has been unsuccessful in both the Courts below has preferred this appeal. There is another provision of the Act which is applicable, and more directly applicable, to this case and that is Sub-section (ii) of Section 12. It is not necessary for the application of this sub-section that there should have been a formal decision on the question of sufficiency of the Court-fees : Shama Soondary v. Hurro Soondary  7 Cal. 248. Under this subsection the plaintiff-appellant may be called upon to pay the requisite additional Court-fees on the aforesaid documents, and on his failure to pay the same within such time as the Court shall fix, the Court is bound to dismiss the suit under Section 10, Sub-section (ii). For the adoption of this course by this Court it is necessary, that the suit should have come before this Court, which evidently means that the appeal should have been registered, because not till the appeal has been registered in this Court can it properly be said that the suit has come before this Court. This course is mandatory and the power conferred by this provision of the law may be exercised at any time so long as the suit remains before this Court on appeal. The proper order to pass in the present case therefore is to direct that the appeal should be registered on the appellant supplying the deficit Court-fees as regards his memorandum of appeal to this Court. After the appeal has been registered and before it is dealt with tinder Order 41, Rule 11, Civil P.C., it should be placed before the Court for proper orders being passed under Section 12, Sub-section (2), Court fees Act.
4. On the appellant's prayer we allow him further time till 3rd January 1927 to put in the deficit Court-fees for his memorandum of appeal to this Court, but it must be understood that he must put the same in by that date, and in default thereof the appeal will stand rejected.