Mahomed Ali Amjad Khan vs Secretary, of State for India

Prinsep and Stephen, JJ.—It was not pointed out to us, when delivering the judgment in these cases, that the amount found to be due to the Appellant in appeal No. 87 on the calculation made, was more than what he had claimed in his memorandum of appeal. If that had been pointed out at the time we delivered judgment, the amount what we were prepared to decree would have been reduced. We find now that, in his memorandum of appeal, the proprietor of the land, taken by the Government, has estimated the value of the amount which he considers due to himself for the purposes of court-fee, at a sum lower than what has been allowed him in the calculation made by us.

The Court-fees Act, in allowing a sum in excess of the amount claimed, limits it to certain suits and amongst those we do not find a suit of this description specified in Section 11 of the Court-fees Act. On the other hand, we find that Section 8 of that Act lays down the principle on which court-fees should be calculated on the memorandum of appeal in a case of this description and applying this principle to the present case, we find that the Appellant in appeal No. 87 claimed only Rs. 438, whereas by the terms of our decree, he has obtained Rs. 1,081-6. We think, therefore, that the decree must be limited to the amount at which the memorandum of appeal has been valued and that the decree previously made will accordingly be so far modified as to allow the Appellant the amount claimed in the memorandum of appeal, vis., the sum of the Rs. 438 over and above the amount given him by the District Judge.