Munshi Mahton and Others vs Lachman Lal and Others

Kulwant Sahay, J.—The suit out of which the present appeal arises was instituted by the plaintiff for a declaration that a mortgage decree obtained on the basis of a mortgage bond executed by his son, the defendant No. 9, could not be executed by the sale of the mortgaged property which was a joint family property and for an injunction restraining the defendants Nos. 1 to 8, the decree-holders from executing the decree. The plaintiff valued the property which was sought to be sold in execution of the mortgage decree at Rs. 500 and he paid a Court-fee of Rs. 47.80 upon the value of the property as alleged by him.

The Subordinate Judge, Registrar of Patna before whom the plaint was filed was of opinion that the plaintiff should pay Court-fee upon the amount of the mortgage decree which was Rs. 2 298-10-9 He accordingly by his order of the 28th September, 1926, called upon the plaintiff to pay the deficit amount of Court-fee by the 30th September, 1926. The plaintiff having failed to pay the deficit Court-fee the matter was placed before the Munsif who rejected the plaint on account of non-payment of the deficit Court-fee by his order dated the 4th October, 1926 Against this order the plaintiff preferred an appeal which came on for hearing before the Subordinate Judge of Patna.

Two preliminary objections were taken before the learned Subordinate Judge on behalf of the respondents, namely, the defendants Nos. 1 to 8 in the suit. The first objection was that the appeal before the Subordinate Judge was barred by limitation and the second objection was that the Court-fee paid on the memorandum of appeal was insufficient. As regards the objection relating to limitation the facts are these. The order rejecting the plaint was made on the 4th October, 1926, and the Civil Courts closed for the annual vacation on the 5th October, 1926. The Court re-opened on the 8th November, 1926. The plaintiff applied for a copy of the order on the 23rd November, 1926, and the copy was furnished to him on the same day. The appeal before the Subordinate Judge was filed on the 1st December, 1926. The question is whether the plaintiff was entitled to exclude the period of the vacation in computing the period of limitation for the appeal. The learned Subordinate Judge has held that he is entitled to exclude that period on the authority of the decision of this Court in Debicharan Lal v. Mehdi Hussain 35 Ind. Cas. 888 : 1 P.L.J. 485 : 20 C.W.N. 1303 : 1 P.L.W. 209. There also the facts were similar to the facts of the present case. In that case the decree was passed on the 27th September, 1913. The Court closed from the 28th September to the 31st October both days inclusive. The defendant applied for a copy of the judgment on the 3rd November that is, two days after the re opening of the Court and for a copy of the decree on the 13th November and both the copies were delivered to him on the 21st November, and the appeal was actually filed on the 28th November, and it was held that under those circumstances the appeal was filed within time inasmuch as the appellant was entitled to exclude the period during which the Court was closed, namely, from the 28th September to the 31st October. The learned Chief Justice held that the appellant was entitled to exclude that period under the provisions of Section 12 of the Limitation Act. This case applies directly to the facts of the present case and applying the view taken by the learned Judges in that case it must be held that the present appeal before the learned Subordinate Judge was not barred by limitation.

It is contended, however, on behalf of the respondents that the later Full Bench decision of this Court in Jyotindra Nath Sarkar v. Lodna Colliery Co. 62 Ind. Cas. 649 : 2 P.L.T. 361 : (1921) Pat. 177 : 6 P.L.J. 350 (F.B.) has overruled) the decision of this Court in Debi Charan Lal v. Mehdi Hussain 35 Ind. Cas. 888 : 1 P.L.J. 485 : 20 C.W.N. 1303 : 1 P.L.W. 209. I am, however, of opinion that the Full Bench decision does not overrule the previous decision of this Court. It, no doubt, holds that if the appellant does not apply for copies until after the expiration of the period prescribed under the Articles of the Limitation Act he is not entitled to deduct the time between the actual signing of the decree and the delivery of the judgment. But then this observation is qualified by the words "provided copies were obtainable within that period". This proviso clearly shows that if copies were not obtainable then the appellant is entitled to exclude that period. It is clear that if the judgment in the case is delivered on the day previous to the closing of the Court the appellant is entitled to exclude the period during which the Court was closed in order to compute the period of limitation for the appeal against that judgment. The decision of the learned Subordinate Judge on the point of limitation is correct.

As regards the other preliminary objection taken before him, namely the insufficiency of the stamp on the memorandum of appeal, the decision of the learned Subordinate Judge is manifestly wrong. The suit, as I have already said, was valued at Rs. 500, namely, the value of the property which the defendants wanted to sell and the plaintiff paid a Court-fee of Rs. 47-8-0 upon the plaint which was the proper Court-fee upon the valuation of the suit. On his memorandum of appeal he paid a Court-fee of one rupee only on the ground that the appeal was against an order and not against the decree. The learned Subordinate Judge has referred to Article 11 of Schedule II of the Court-Fees Act and has held that this Article provides that appeals against orders rejecting a plaint are to be treated as miscellaneous appeal and the memorandum of appeal has to be stamped with a stamp of one rupee only. Now what Article 11 of Schedule II provides is as follows:

Memorandum of appeal (or of cross-objection) when the appeal is not from a decree or an order having the force of a decree and is presented (I quote only so much as is necessary for the purposes of this appeal) to any Civil Court other than a High Court shall bear a Court-fee of one rupee.

Now, it is clear on a consideration of this Article that ad valorem Court-fee has to be paid on a memorandum of appeal against a decree or order having the force of a decree. An order rejecting a plaint is a decree within the definition of the term in Section 2, Clause (2) of the CPC Therefore, a memorandum of appeal against an order rejecting a plaint must be stamped ad valorem. The learned Subordinate Judge has clearly fallen into an error on account of the words "from an order rejecting a plaint or" which originally stood in Article 11 having been omitted therefrom by Section 155 read with Schedule IV of the Code of Civil Procedure. The reasons for the omission of those words are clear. Before the Code of 1908, orders rejecting a plaint were not treated as decrees. It was by the definition of the term ''decree'' in the Code of 1908 that orders rejecting plaints were deemed to be decrees and as Article 11 does not provide for an appeal against a decree it is clear that an appeal against an order rejecting a memorandum of appeal does not come within the purview of the Article. It is clear, therefore, that the memorandum of appeal was insufficiently stamped.

It is, however, stated by the learned Advocate for the respondent that he filed an application before the learned Sub-ordinate Judge offering to pay the deficit Court-fee if it was held that the memorandum of appeal was not properly stamped. The learned Subordinate Judge having found that the memorandum of appeal was sufficiently stamped passed no orders upon that petition. The plaintiff-appellant before the learned Subordinate Judge will be entitled to have an opportunity to pay the deficit Court fee on his memorandum of appeal before him valuing the memorandum of appeal at Rs. 500.

Then as regards the main question raised in the appeal before the learned Subordinate Judge, it is clear that what the plaintiff was seeking in the suit was a relief in respect of the joint family property which he claimed could not be sold in execution of a mortgage decree obtained against the defendant No. 9. He was, therefore, interested only to the extent of the value of the property. He could not be made liable for the amount of the decree in excess of the joint family property which was sought to be sold in execution of the decree. The following observations of their Lordships of the judicial Committee in Phul Kumari v. Ghanshyam Misra 35 C. 202 : 7 C.L.J. 36 : 35 I.A. 22 : 12 C.W.N. 169 : 10 B. L.R. 1 : 17 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 5 A.L.J. 10 (P.C.) apply to the facts of the present case:

The value of the action must mean "the value to the plaintiff. But the value of the property might quite well be Rs. 1,000, while the execution debt was Rs. 10,000. It is only if the execution debt is less than the value of the property that its amount affects the value of the suit.

This question was considered by this Court in Bankey Behari v. Ram Bahadur 44 Lad. Cas. 891 : 4 P.L.J. 191 : 4 P.L.W. 281 : (1918) Pat. 223. In that case the value of the property so far as the plaintiff''s share was concerned, was only Rs. 1,300 while the value of the decree sought to be set aside was Rs. 12,200. Their Lordships applied the principle laid down in Phul Kumari v. Ganshyam Misra 35 C. 202 : 7 C.L.J. 36 : 35 I.A. 22 : 12 C.W.N. 169 : 10 B. L.R. 1 : 17 M.L.J. 618 : 2 M.L.T. 506 : 14 B. L.R. 41 : 5 A.L.J. 10 (P.C.) and held that the plaintiff was liable to pay a Court-fee only on the value of the property. It is clear, therefore, that in cases like this the value of the relief which the plaintiff seeks must be the value of the property with which he is concerned or the amount of the decree which he wants to get rid of, whichever sum may be smaller. The plaintiff has in the present case valued the property at Rs. 500. That valuation must be accepted for the purposes of admitting the plaint. It would no doubt be open to the Court at any subsequent stage to demand a Court-fee on a sum higher than Rs. 500 if it is subsequently established that the value of the property is more than Rs. 500, up to the value of the decree, which is sought to be executed and the execution of which is sought to be restrained.

The result is that the order of the learned Subordinate Judge in so far as he decided that the memorandum of appeal before him was properly stamped must be set aside. His decision on the other points will be affirmed. The appeal will go back to the learned Subordinate Judge for giving an opportunity to the appellant before him to pay the proper Court-fee on the memorandum of appeal within such time as he may fix for the purpose. In case of such deficit being paid, the plaint will be ordered to be admitted and the case sent back to the Munsif for disposal according to law. Costs of this appeal and of the appeal before the learned Subordinate Judge will be costs in the cause.

Maepherson, J.

I agree.