1. In this case, the plaintiff brought a suit for accounts against two defendants as executors of the plaintiff's grandmother. He valued his suit so far as regards the claim for accounts at Rs. 1,000 and this he appears to have done quite reasonably and correctly under Sub-clause (f), Sub-section (4), Section 7, Court-fees Act.
2. A preliminary decree for accounts was made against the two defendants and from this they appealed to the High Court paying full court-fee so far as regards the claim for accounts, viz., on Rs. 1,000. They paid apparently a court-fee on Rs. 1,300 altogether. A stay of execution was asked for from this Court but was refused and the suit in the Court below proceeded; after an enquiry and report by a commissioner a final decree was made in the plaintiff's favour for Rs. 6,418 as the amount due from the defendants upon the taking of the accounts. The judgment did not require the plaintiff as a condition precedent to deposit an additional court-fee within a given time nor did it order that on his failure to do so, the suit should be dismissed. It appears that there is no provision in the Statute Law requiring the Court to make an order in that form. There is, however, a provision by Section 11, Court-fees Act, which is as follows:
If the profits or amount decreed are or is in excess of the profits claimed or the amount at which the plaintiff valued the relief, sought, the decree shall not be executed until the difference between the fee be actually paid and the fee which would have been payable had the suit comprised the whole of the profits or accounts so decreed shall have been paid to the proper officer.
3. Thereupon, the defendants bring in this Court an appeal from the final decree and the question before me is the question of the proper amount of the court-fee that they must pay upon their memorandum of appeal. It appears to me to be prima facie clear that the amount payable upon this memorandum, of appeal is governed by the same words as governed the plaintiff's liability to pay court-fee when he brought his suit. It is governed by Clause (f), Sub-section (4), Section 7, Court-fees Act:
Suits for accounts according to the amount at which the relief sought is valued in the memorandum of appeal.
4. The Registrar, I think, viewed this matter exactly in the proper way. The question is the liability being according to the amount at which the relief sought is valued in the memorandum of appeal is it proper in this appeal to say that under Article 17, Schedule 2, it is impossible to value the relief or is it open to the appellant to say that it is possible to value the relief, but that he can justify a valuation that is less than the sum of Rs. 6,418 by reason of the fact that the decree of the lower appellate Court as it stands is not at this moment a decree which can be executed without payment of further court-fee. In my judgment it is reasonably clear that Article 17, Schedule 2, cannot be applied in these circumstances at all. It was never intended to apply to a case where a person with a definite decree for a particular sum of money against him seeks to set it aside. The question whether or net a decree is at this moment capable of being executed without payment of a certain amount of money by the plaintiff as a court-fee is not, in my judgment, a question which affects the method in which the relief in a memorandum of appeal of this character can be valued. It is in no way for this Court to estimate or value the chances of the plaintiff paying the necessary court-fee in order to get execution. The appeal is an appeal from a decree. The execution of the decree seems to me to be an extraneous and collateral matter altogether. It is the decree which establishes the liability. The mere fact that the plaintiff would have to pay a fee to enforce the liability is not a matter which affects the fact that the defendants here are endeavoring to get rid of a liability of Rs. 6,418. One may consider this matter from the strict point of view of theory. It might quite well be that the plaintiff would never need to apply to enforce his claim by execution. He might have a cross-claim which he might set off. There might be other ways in which he might be able to utilize his decree. It cannot be said that there is anything defective in the decree itself and as the plaintiff is at the present moment not concerned with any question of execution it does not seem necessary that this question of execution should be taken to affect the case at all.
5. It has been contended by Mr. Bagchi that the reason why the Judge in the Court below did not insist upon payment of a further court-fee as a condition precedent was that if the appeal against the preliminary decree succeeded the additional court-fee paid by the plaintiff in respect of the final decree would be paid in vain since the final decree would be brought to the ground if the preliminary decree were set aside. I do not know whether that was the motive of the learned Judge or not but this question cannot depend upon the motive of the learned Judge in the Court below. It is said to be inequitable that the defendants should have to pay a court-fee on Rs. 6,418 when, so far, the plaintiff has never had to pay a court-fee upon that amount. Equity and equality are sometimes two different things. 'What the plaintiff had to pay is not to my mind relevant on the question of what the defendants should pay. Defendants have thought fit to appeal against the decree. They have sufficient respect or fear for the decree to make it seem worth while to bring the appeal against the decree itself. It does seem to me that even if it turns out that the plaintiff has been treated in a lenient way consistent with the court-fees Act that is not any reason why in a matter of this kind I should treat the defendants otherwise than in accordance with the meaning of the statute. It is very probable that the plaintiff will pay additional court-fee and in that case the question of equity will vanish altogether. I cannot think that the expression used in the course of discussing another matter in the case of Kanchan Mandar v. Kamala Prasad Chaudhuri  16 C.L.J. 564 ought to be regarded as in any way an authority on the point. It is quite true that in putting a hypothetical case the learned Judges said:
If mesne profits had been decreed for a higher sum than what is claimed in the plaint and if the plaintiff had obtained a decree for such sum upon payment of additional court-fees, the defendants might have been called upon to pay the difference.
6. The learned Judges there put the case which was the usual case but their remarks cannot be treated as impliedly deciding a case in which the plaintiff got a decree without immediate payment of additional court-fees.
7. I have been carefully through the note made by the Registrar in this matter and agree in the view which he takes. It is quite clear upon the authority of the case I have already mentioned and also on the case of Ram Mandar v. Maharani Nawlakhbati A.I.R. 1924 Pat. 694 that for the purpose of this appeal the defendants will get credit for what they have already paid in connexion with the appeal from the preliminary decree, the principle being that the defendants are in the end resisting certain claim and on that they have come to Court and they do not have to pay the court-fees twice over. I am satisfied that the figure at which the Registrar has assessed the liability in his reference is the correct figure and confirm it.