1. This is a deft's first appeal against the judgment & final decree for sale under Order 34,. Rule 5, Civil P C., dated 17-3-1950, passed by the Senior Subordinate Judge of Kaaumpti,
2. On foot of a simple mtge. dated 23-6-1935, executed by the applt. Pritam Singh in favour of Jagannath, deceased father of the pitf.-resp. Khushi Lal. for Rs. 2,000 the pltf filed a suit in the Ct. of the Dist. J. of Theog, Relief was claimed against Pritam Singh & his firm styled as Kattar Singh Gurbana Das. The pltf. also impleaded his two brothers, Bakshi Ram & Roshan Lal, as pro forma defts on the ground that under a will made by his father he alone was entitled to sue on foot of the mtge.-deed.
3. A preliminary decree under Order 34, Rule 4, waa passed by the Dist. J. of Theog on 15-1-1947. The present deft, went up in appeal to the Chief Judicial Officer which was dismissed on 17-7-1947. He than filed a second appeal before the Judicial Commitee which was also dismissed on 8 6 1948 Thereafter the pltf. applied to the Senior Subordinate Judge of Kasumpti on 18 2 1949 for a final decree. That appln. was dismissed for default on 30-4-1949. The pltf. then filed a second appln. for final decree in the Ct. of the Dist. J. of Mahasu on 5-5-1949. The Dist. J. transferred that appln. to the Senior Subordinate Judge of Kasumoti, who passed the final deoree dated 17-3-1950 against which the present appeal has baen filed by ths deft.
4. There were three preliminary objections taken by the learned counsel for the plft.-resp. that the appeal is not cognizable by this Ct. but should have been filed before the Judicial Committee, that the C.-f. paid is insufficient & that the appeal is time barred. In view of the provisions of Section 6, Court-fees Act, the question of proper c.-f. payable should be taken up & decided before the appeal is heard on the marits. Muneahwar v. Har Prasad, A.I.R (33) 1945 oudh 207 : (1915 A.w.r. c. C. 85) I shall, therefore, take up the second objection relating to c. f. first of all.
5. Ad valorem c.-f. under Schedule I, Article 1, Court-fees Act, was paid by the deft, applt. on his appeal from the preliminary decree. It is, therefore, contended on his behalf that further ad valorem c.-f. is not payable by him on his appeal from the final decree. Accordingly, he has paid a fixed c.-f. of RS. 4 on the memo. of the present appeal. It was urged by the learned counsel for the deft.-applt. that the only grounds on which he is challenging the final decree passed by the Senior Subordinate Judge of Kasumpti are : (1) that that Ct. had no jurisdiction ro pass the decree & (2) that in accordance with Form NO 6 in Appen. D, Schedule I, Civil P. C., the final deoree should not contain the costs awarded in the preliminary decree. He, therefore, contended that he was not in any way touching the preliminary decree & should not be made to pay ad valorem c.-f. twice over. In support of his argument he cited the ruling reported as Budhu Ram v. Niamat Rai, A.i.r. (10) 1923 Lab 632 : (4 Lah. 406). That was, however, a suit for redemption where in the appeal from the final decree the applt, had not contested anything beyond what was contested in the appeal from the preliminary decree & there was nothing fresh for the Ct. to decide before it passed the final decree. That is not so here. In the present appeal the entire final decree is being challenged, & that on new grounds which have come into existence after the passing of the preliminary decree. That being so, the applt. must pay ad valorem c.-f. under Schedule I, Article I, Court, fees Act, on the entire amount for which the final decree hag been passed. It would have been different had the present appeal been directed only against the amount in excess of that for which the preliminary decree was passed, in which case c.-f. would have been payable by the applt. on the amount in excess of that on which c.-f. had already been paid in the appeal from the preliminary decree, I am supported in this view by the decision of the Patna H. C. reported as Kausalya Devi v. Kauleshwar, A. I. R. (34) 1947 pat. 113 : (36 Pat. 305). The facts of that case were also similar to those of the present. The deft.-applt. had paid ad valorem c.-f. in his appeal from the preliminary decree. He then filed at) appeal from the final deoree attacking tbe whole of that decree upon new grounds which had arisen between the passing of the preliminary & the final decrees. One of those grounds was that the final decree had been passed by a wrong Ct. Repelling the contentions that the applt should not be made to pay ad valorem c..fs. twice over, & that if any c.-f. was payable it could only be on the difference between the valuations of the preliminary & final appeals, it was observed in that case as follows : I do not myself see the hardship. The c.-f. is paid for the decision of Ct. C.-fs, have to be paid separately upon a first appeal & second appeal. II that ia no hardship, why is it a hardship to pay separate c.fs. for two separate decisions upon separate points by the same Ct. The subject-matter of the two appeals is entirely different, & must necessarily be entirely different, since the same point cannot be agitated in the preliminary appeal & in the final appeal. It can only be in rare & exceptional cases that it will be possible to challenge the entire decree in the final appeal, since in the main the rights of the parties will have been determined in the preliminary appeal, & all that will be left for the final appeal in most cases will be subsidiary points, which do not involve a challenge to the entire decree, A consequently will not necessitate the payment of full ad valorem c.-fs. A case like the present is & mnst be unuusal.'
6. I therefore hold, agreeing with the pltf. resp. that the c.-f. paid on the memo, of the present appeal is insufficient, the proper c.-f. payable being ad valorem c.-f. under Schedule I, Article 1, Court-fees Act, on the amount for which final deoree has been paeaed.
7. It seems that the applt. was under a bona fide mistake as to the amount of the c.-f. payable on the memo, of appeal. This is also apparent from the fact that the deft. applt. has been contesting with some show of justification the correctness of the office report that the c.-f. paid by the applt. was insufficient. Nor was it argued on behalf of the pltf.-resp. that this was not a fit case in which the deft.-applt. should be allowed time under Section 149, Civil P. C., to make up the deficiency. The applt. wants, & is given, time till 15-3-1951 for making up the above deficiency. The appeal will then be put up on 19-3-1951 for disposal of the remaining preliminary objections taken on behalf of the pltf.-resp. &, if necessary, for further arguments.