Jagarnath Prasad and Others vs Bhala Prasad Singh and Others

Meredith, J.—This is a reference u/s 5, Court-fees Act, and relates to a suit for recovery of Rs. 8000 due under a mortgage bond. The suit was decreed, but pendente lite interest and future interest were disallowed. "Upon that point alone the plaintiffs have filed an appeal to this Court. The appellants did not state the valuation of the appeal for purposes of court-fee, apparently on the ground that the value could not be ascertained, and paid only a fixed court-fee of Rs. 15 under Schedule 2, Article 17 (vi), Court-fees Act.

The learned taxing officer in his order of reference expresses the opinion that in respect of future interest the amount may be an unas-certainable sum, the date of realization being unknown, but the claim for pendente lite interest can easily be ascertained, as both ends of the period, the date of institution of the suit and the date of the decree, are known, and interest was claimed in the plaint at a definite rate. The Stamp Reporter upon the authority in Damodar Pershad Vs. Hardeo Pershad a decision of King J. as Taxing Judge of the Allahabad High Court, has suggested that ad valorem court-fee is payable on this sum under Schedule 1, Article 1, Court-fees Act.

For the appellants it is contended, relying upon a Patna Full Bench case, Thakan Chaudhuri v. Lachhmi Narain AIR 1934 Pat. 571 and certain other Patna decisions referred to and approved therein, and also upon the Bombay case, Vithal Hari Athavle v. Govind Vasudeo Thosar 17 Bom. 4l that the court-fee of Rs. 15 was mistakenly paid and that in fact no court-fee at all is payable on the appeal.

It is an extraordinary contention that an appeal can be preferred without any court-fee whatever being payable, and I do not consider it is a correct contention. King J. in the Allahabad case already referred to, has dealt with most of the cases relied upon by the appellants. His reasoning appears to me to be correct and I have little to add to it. He points out that the Bombay case was decided before the amendment of Article1, Schedule 1, Court-fees Act, by Section 155 and Schedule 4, Civil P. C, 1908. The amendment, as he says, makes it clear that Article 1, Schedule 1 is a substantive provision governing court-fees payable upon a memorandum of appeal. Vithal Hari At-havle v. Govind Vasudeo Thosar (17 Bom. 41)s" can, in my judgment, no longer be considered good law. As for the Patna cases they are none of them really in point. The Full Bench case dealt with the position where the holder of the mortgage decree had paid court-fee on the amount due at the date of the institution of the suit and had tried to execute his decree for a higher amount than that claimed because interest pendente lite had been allowed. The other Patna cases dealt with the same point. It is of course true that when a suit is filed a claim for pendente lite interest is not for an ascertainable sum. But the position is quite different once the suit has been decreed and an appeal is preferred specifically with regard to the pendente lite interest disallowed up to the date of the decree. Here the position is analogous to the case where a special ground is taken in appeal regarding costs. It has long been settled in this Court that where an appeal against costs is distinct and sepa-rate from other parts of the appeal, court-fees must be paid ad valorem on the costs decreed: see T. K. Rowlins v. Lachhmi Narain Jha AIR 1918 Pat. 210. As King J. said, when the appellant has expressly claimed a definitely ascertainable sum by way of pendente lite interest, which was disallowed by the trial Court, that sum must be held to be part of "the amount or value of the subject-matter in dispute." Otherwise, where the appeal relates to pendente lite interest only, it would follow that there was no subject-matter in dispute in. the appellate Court, an absurd conclusion. ''

I hold that ad valorem court-fees are payable on the amount claimed as pendente lite interest disallowed.