Ram Bhujhwan Prasad Singh vs Natho Ram and Others

Coutts, J.—This is an appeal ''against an order of the Subordinate Judge of Patna disallowing an objection in an execution matter. It appears that a suit was brought by the decree-holder on a mortgage for a sum of Rs. 32,000. He obtained a decree for Rs. 236 only and appealed against this decree to the High Court. The High Court granted him a decree for a lakh of rupees. The decree-holder then attempted to execute his decree and the judgment debtor objected to that, as Court-fee on Rs. 32,000 only had been paid, under the provisions of Section 11 of the Court-Fees Act, the decree could not be executed until the full Court-fee on the total amount decreed had been paid.

The objection, as I have already said, has been disallowed and the execution has been ordered to proceed. A preliminary objection has been taken by the decree-holder that no appeal lies as the question is purely one of admission of an execution application which does not come within the definition of "decree" as laid down u/s 2 of the Civil Procedure Code. I am unable to accept this contention. The question is not one of Court-fee but a question in execution as to whether the execution can proceed or not.

On the merits, however, the appeal must fail. Section 11 of the Court-Fees Act refers to suit for Immovable properties, mesne profits and accounts and the cotention, in this case is that the suit is one for an account. No authority has been shown to us for this contention and, in my opinion, the suit is clearly not one for an account. I agree with the view which has been taken by the learned Subordinate Judge in regard to this matter and would dismiss this appeal with costs.