1. The appellants hold a prior mortgage (Ex. S) and two subsequent mortgages (Exs. R & T) in respect of some properties which are also covered by a mortgage (Ex. 1) in favour of the plaintiff respondent. There are some additional properties in Ex. 1 and Ex. T but the matter is of no importance in this connection. There were two mortgagors of whom one having died the other is now the sole respondent representing the entire interest of the mortgagors.
2. The suit was for enforcement of the plaintiff's mortgage. The dues on all the four mortgages have been found by the Court below which has made a decree in Form No. 9 of App. D which is the Form applicable to a decree in a suit by the 1st mortgage against the mortgagor with the 2nd mortgagee as a party. The Court has thus given the plaintiff relief on the basis of his being the 1st mortgagee and ignoring the appellant's mortgage (Ex. 8) which if it is taken into account would make the plaintiff the 2nd mortgagee and would make the appellants the 1st mortgagees as well as subsequent mortgagees after the plaintiff's mortgage:
3. On the basis on which the Court below has proceeded:
(a) The Court has made a decree in Form No. 9 and has refused to make a decree in Form No. 10 as was asked for on behalf of the appellants because the plaintiff had not prayed for redemption of the appellants prior mortgage. It has thus ordered the sale of the property subject to the prior mortgage unless a sale free from the prior mortgage is properly applied for under Chap. XXXIV Rule 12.
(6) The Court has refused the appellants prayer to be given liberty to apply for the sale of the additional property mortgaged by Ex. T (which is not in Ex. 1). It has held that this is an advantage which the appellants are claiming in excess of what they can have in the plaintiff's suit.
(c) The Court has refused the appellants prayer for a reservation of their right to apply for a personal decree. It has held that such a right cannot be reserved for a defendant.
4. The prayers, refused as above, have been repeated in the Memorandum of Appeal which the appellants have preferred. We are not concerned, at the present stage, with the merits of the prayers or of the grounds upon which they have been refused. The question at this stage is only a question of court fees.
5. The Crown relies upon Schedule 1, Article 1 and contends that the case falls within the words:
Memorandum of appeal not otherwise provided in this Act .... when the amount or value of the subject-matter in dispute' etc.
6. The appellants desire to bring the case within the words of Schedule II, Article 17(vi):
Memorandum of appeal in each of the following suits every suit where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided by this Act.
7. It is conceded that there is no other provision which need be considered or is specifically applicable.
8. The appellants no doubt are asking for certain advantages, but they are doing so only on the footing of their being prior as well as subsequent mortgagees who were made parties to the suit. The decree which has been or may be passed in the suit will no doubt be a decree to-their advantage and which they will be competent to execute, to the extent that it entitles them to any relief or reliefs on their own mortgages. But their position in the appeal must be that as defendants in the plaintiff's suit they are entitled to have certain rights of theirs protected in the decree which the plaintiff obtains or has obtained. This being the true view to take of the situations I am unable to see how the dues on the appellants mortgage or mortgagees can be regarded as the value of the subject-matter in dispute, or how the dispute such as there is in the appeal may be valued in terms of such dues. In my opinion the advantages which the appellants are seeking cannot be assessed at a money value so long as they are seeking for them in the present suit or in the present appeal.
9. It should be remembered that it has not been the policy of the law to tax with court fees ad valorem every advantage which a party is seeking for in Courts: were it otherwise, a written statement by a puisne mortgagee would have been so taxed. The fact seems to me to be this that until the amendments of the Code in 1929 a prior mortgagee's rights were not required to be adjudicated on in a suit by a puisne mortgagee in the manner now provided for, and that the legislature while it has now enacted Form No. 10 and given it statutory recognition in Rules 2(3) and 4(4) of Order XXXIV has not yet made any provision for court-fees which may be payable by the prior mortgagee. Whether it is possible for the appellants to get in the present suit the advantages he wants is of course a different matter and as I have already stated, with that we are not concerned at the present stage. But I am clearly of opinion that the present case cannot be brought within Article 1, of Schedule I without unduly straining the words of that article.
10. The appeal has arisen out of a suit which is not otherwise provided for by the Act and it is not possible to estimate at a money value the subject matter of the dispute which is there in the appeal. The case, in my judgment, comes within the words of Clause (vi) of Article 17 of Schedule II of the Act and the memorandum of appeal should bear the court-fees required by that clause.