C.B. Capoor, J.C.
1. This second appeal has been preferred by the judgment debtor and is directed against an appellate judgment and decree of theSeamed District Judge Mandi and Chamba Districts dismissing an appeal preferred by the appellant against a final decree under Order 34, Rule 8 of C. P. C.
2. The appellant has paid a Court-fee ofRs. 4/- on the memorandum of appeal. The officehas objected that Court-fee is payable ad valoremunder Article 1 Schedule 1 of the Court-fees Act.The correctness of the office report has been challenged on behalf of the appellants. It has beencontended on behalf of the appellants that the present appeal is directed against the decree of thelearned District Judge which was passed on anappeal against an order and as such the presentappeal should also be treated to be against anorder.
In support of the contention that the appeal in the Court of the learned District Judge was against an order a two fold contention has been advanced on behalf of the appellant (i) that the memorandum of appeal was covered by Article 11 Schedule 2 of the Court-fees Act (ii) that the appellant had filed an appeal against the preliminary decree and had paid Court-fee thereon and he was not, therefore, liable to pay Court-fee again on the filing of appeal against the final decree.
3. Re: point No. 1. Article 1 Schedule 1 inter alia covers a memorandum of appeal not otherwise provided for in the Act and according to that Article ad valorem Court-fee is payable on the memorandum of appeal. The contention advanced on behalf of the appellant is that the appeal filed an the Court of the District Judge fell under Article 11 Schedule 2. The relevant portion of that Article reads as below:
'Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree.'
4. Order 34 of C. P. C. contemplates passing of a preliminary and a final decree in a suit for redemption. It has been provided in Order 34, Rule 8 of C. P. C. that where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under Sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 7, the Court shall on application made by the plaintiff in this behalf, pass a final decree. The 1 appeal filed in the Court of the District Judge purported to be against a final decree. The contention advanced on behalf of the appellant that as the final decree is passed in pursuance of an application the decree should be treated as anorder has no merit. Since the appeal was directed against a decree and not against an order Article 11 referred to above could have no application whatsoever.
5. On behalf of the appellant reliance has been placed upon a ruling of the Madras High Court reported in AIR 1930 Mad 20, Ranga Raju v. Ethirajmal:
The facts of that case briefly stated were thata preliminary mortgage decree was passed and thereafter an application was filed for the passing of a final decree and notice was issued to the judgment-debtor that the decree had been adjusted, but that objection was overruled and the final decreewas ordered to be drawn up. Thereafter an appeal was preferred in the Court of the District Judge styling it as a miscellaneous appeal, and Court-fee was paid as if the appeal were against an order not having the force of a decree. Theappellate Court rejected the appeal on the ground that proper Court-fee had not been affixed thereto. The matter was taken up to the High Court in revision and the learned Judge held that the appeal filed in the Court of the District Judge was against an order and as such Court-fee was payable thereon under Schedule 2 Article 11. The question formulated in the aforesaid case was whether an appeal against an order directing after contest that a final decree shall be passed in a mortgage suit should be treated as an appeal against the final decree in that suit and it was held that although the effect of the order was that a final decree must be passed it could hardly be said that the appeal was tantamount to an appeal from that decree.
Further on the following observations were made:
'In this appeal against an order, the grounds must necessarily be limited to adducing cause why the final decree should not be passed; whereas once the decree is passed and an appeal is preferred against it, grounds such as those would not avail the appellant, but he must attack the merits of decree. I think it is quite clear, therefore, that the scope of an appeal against the order would be different from that against the decree and further that the judgment-debtor has a right of appeal against both. To charge him ad valorem fees in this appeal would mean, if he appealed against the decree, he would have to pay them twice over, which I do not think can be correct'
6. It would thus appear that in the aforesaid case final decree had not been passed rather it was directed to be drawn up and the appeal was filed against an order. That case is clearly distinguishable from the facts of the instant case in as much as a final decree has been passed in it and the first appeal was directed against that decree.
7. Re: point (ii). The contention advanced on behalf of the appellant is an attractive one but as will presently appear is devoid of force. There is no provision in the Court-fees Act that if an appellant has preferred an appeal against a preliminary decree no Court-fee is payable by him when he prefers an appeal against a final decree. If the intention of the Legislature had been that in such an event no Court-fee should be payable a specific provision to that effect would have been made in the relevant articles.
The function of a Court of law is to declare what the law is and not to declare what it ought to be. It has been urged on behalf of the appellant that according to the well established canons of interpretation the Court-fees Act which is a fiscal statute should be interpreted in favour of the subject and as such the Court-fee already paid should be held to be sufficient. The aforesaid rule of interpretation is applicable where the law is not clear and two interpretations are possible. That rule does not apply where there is no ambiguity in the provision of law to be interpreted. On a plain reading of Article 1 Schedule 1 it is obvious that if an appeal is filed Court-fee is payable thereon ad valorem unless provision for the payment of Court-fee on such appeal is made elsewhere in the Act. It has already been seen that Article 11 Schedule 2 which according to the learned counsel for the appellant governed the appeal filed in the Court of the learned District Judge and the present appeal did not apply. If a party chooses to file appeals both against the preliminary and the final decrees he must in the absence of a specific exemption in the Act, pay the requisite Court-fee on the appeal. I am, therefore, of the opinion thatad valorem Court-fee is payable on the memorandum of appeal under consideration.
8. The suit for redemption had been filed to recover possession of 2/3rd share in the mortgaged property. The amount of mortgage money secured by the instrument of mortgage was Rs. 1407-12-. The Court-fee on the memorandum of appeal is, therefore, payable on a sum of Rs. 469/4/- in accordance with Section 7(IX) of the Court-fees Act as applicable to Himachal Pradesh. The Court-fee on the memorandum of appeal filed in the Court of the learned District Judge was also payable ad valorem. The deficiency in Court-fee on that memorandum of appeal as also on the present be made good within two days.