P L D 1955 Dacca 22 (PLP)

CHOWDHURY, J.--‑This appeal is directed against the order of the lower Appellate Court rejecting the memorandum of appeal for non‑payment of deficit Court fee. Only question involved for consideration is whether the plaintiff appellant is to pay ad valorem Court fee on the value of the decree appealed against or he is to pay a fixed Court fee of rupee one under Article 17 (6) of Schedule 2 of the Court Fees Act. Facts of the case shortly stated for the purpose of Court fee are as follows: `Plaintiff borrowed Rs. 500 from the defendant No. 1 by executing a mortgage bond. Defendant No. 1 obtained a decree for more than Rs. 1,000 on the basis of that mortgage bond in Title Suit No. 21 of 1942. Plaintiff filed an application under section 36 (1) of the Bengal Money Lenders Act for relief under that section on the ground that the decree passed in Title Suit No. 21 of 1942 is hit by the provisions of the Bengal Money Lenders Act and is therefore liable to be reopened. Trial Court passed a decree in favour of the plaintiff for Rs. 1,000 (Rs. 500 on account of principle plus Rs. 500 on account of interest during the period up to the date of the decree) and granted the plaintiff 8 equal instalments to pay up the decretal amount. Plaintiff is not satisfied with that decree and filed the appeal in the lower Appellate Court on payment of rupee one as a Court fee for the memo. of the appeal. Learned District judge relying on the case of Kshitish Chandra Maitra and others v. Satish Chandra Ghosh (46 C W N 536.) held that the ad valorem Court fee is payable on the memorandum of appeal by the appellant and directed him to pay the deficit Court fee of Rs. 11‑8 by 11th August, 1945. The plaintiff appellant did not pay that deficit Court fee by that time. On 14th August, 1945, the learned District judge rejected the memorandum of appeal as the ap pellant did not pay the deficit Court fee. Against that decision present appeal has been filed by the plaintiff‑appellant. Mr. Sris Chandra Dutta, learned advocate for the appellant, contends that the grounds taken in the memo. of appeal in the lower Appellate Court do not justify a demand of ad valorem Court fee on the memo. of appeal as the appeal in the lower Appellate Court was confined to a number of instalments granted to the plaintiff to pay the decretal amount. The learned Assistant Government Pleader, appearing on behalf of the Government, contends that the grounds taken in the memo. of appeal are all‑pervading challenging the entire decree passed by the Trial Court and as such is liable to pay ad valorem Court fee on the value of the decree and in support of his contention he relied on the case of Kshitish Chandra Maitra and others v. Satish Chandra Ghosh (supra) and the case of Pran Hari Baidya and others v. Jogesh Chandra Chowdhury and others (46 C W N 681.). I have gone through the memo. of appeal in the lower Appellate Court. It cannot be said that the grounds in the memo. are confined to instalment only. Grounds Nos. 3 and 5 are as follows: Ground No 3 : "For that the learned Munsif's judgment is contradictory and as such it is liable to be set aside." Ground No. 5 : "For that the learned Munsif should not have excluded Rs. 40 the purchase money in Money Execu tion Case No. 250 of 1938 which formed part of the decree in Title Suit No. 21 of 1942." Besides these two grounds, ground No 1 is in the following "For that the learned Munsif has erred both in facts and law and thus arrived at a wrong conclusion." These three grounds cover the whole of the field of the suit challenging the entire decree of the Trial Court. In order to understand the significance of this ground the following facts are necessary to be stated. One of the properties mortgaged to defendant No. 1 as stated by the learned advocate for the appellant is of a jams of Rs. 9 which was again included into an earlier mortgage in favour of Sonadanga Jotho Samiti. In execution of that mortgage decree the jama of Rs. 9 was put to sale and purchased by defendant No. 2 who happens to be the father of denfendant No. 1 for Rs.

40. While the defendant No. 1 instituted the suit to enforce her mortgage being Title Suit No. 21 of 1942, she included this Rs. 40 into her claim in the plaint. In fact she obtained a decree for her mortgage money including this Rs.

40. Thereby she tried to realise these amounts along with her mortgage dues from the sale of the properties including the properties of a jama of Rs.

9. When the plaintiff filed the application under section 36 (1) of the Bengal Money Lenders Act he prayed for reopening of the entire decree and for account of the rents and profits of the properties in possession of the mortgage and impleaded defendant No. 2 as party to the proceeding contending that defendant No. 9 was a Benamdar of defendant No. 1 in the purchase of the property of jama of Rs. 2 for Rs.

40. The defendant respondent contends that defendant No. 2 is not a Benamdar of defendant No. 1 and he is not a necessary party to the proceeding. I am surprised to see that the Trial Court accepted the contention of the defendants and held that defendant No. 2 is not a necessary party and nor a Benamdar of defendant No. 1 and excluded Rs. 40 from the decree of the Title Suit No. 21 1942 for reopening that decree. In excluding Rs. 40 from the amount of the decree of the Title Suit No. 21 of 1942, Trial Court also excluded the property of a jama of Rs. 9 from accounting of the rents and profits of the mortgage properties enjoyed by the defendants. If the rents and profits of this property is taken into account it may be than the amount due from the plaintiff would have been much less than the amount found due and made liable to pay under the new decree. On account of this circumstance grounds Nos. 1, 3 and 5 have been taken by the plaintiff appellant in the lower Appellate Court. Therefore it cannot be said that the appeal is confined to instalment only. In this view of the matter decision of the learned District Judge is correct and the present appeal is liable to be dismissed. But I allow the plaintiff‑appellant to pay the deficit Court fee within three months from the date of the arrival of the record in the lower Appellate Court, failing which the memorandum of appeal in the lower Appellate Court will stand rejected as per order of the learned District Judge. Before I part with this appeal, I must deal with the Court fee payable by the plaintiff‑appellant in the memorandum of appeal in this Court. The report of the Stamp Reporter is as follows : "The question as to the amount of Court fee payable being the subject matter of this appeal, the office is precluded from reporting that the memo. is insufficiently stamp ed. The Court fee to be paid in this appeal shall be decided by the Court as upon the grounds taken. The office should keep a watch regarding any order upon the Court fee matter which may be passed by the Court, and act accordingly. As this is not a reference to Court under section 12 (ii) C of the Act the matter cannot go up before the Bench during the hearing under Order 41; Rule 11, C. P. C. The matter for decision in appeal is the Court fee matter and it is expected to be decided during the final hearing. The result of the final hearing should be communicated to this S. R. for any action if necessary. If the appeal is dismissed either under Order 41, Rule 11 or at the final hearing the matter goes but if there be any order of the Court on the point of Court fee it must be carried into effect. In pursuance of my decision as to the amount of Court fee pay able by the plaintiff‑appellant in the lower Appellate Court he is bound to pay ad valorem Court fee on the memo. of appeal in this Court on the amount of the new decree passed by the Trial Court after reopening the decree in Title Suit No. 21 of 1942. The plaintiff‑appellant has paid only Rs. 15 in the memo. of appeal in this Court. He is to pay the balance within two months from today failing which the memo. of appeal will stand rejected. A. H. Order accordingly.