Ranga Raju and Another vs Ethirajammal

Curgenven, J.—This Civil Revision Petition was presented in the following circumstances. The plaintiff, now respondent, obtained a

preliminary mortgage decree against the petitioner, and applied in M.P. No. 279 of 1927 to have a final decree passed. The defendants were given

notice and alleged that the decree debt had been adjusted. This issue was tried by the Subordinate Judge of Chingleput and found against, so that

he directed that a final decree should be drawn up. The petitioners took this order on appeal to the District Court, stamping it as though for a

Miscellaneous Appeal. The learned District Judge took up the matter of the sufficiency of the Court-fee and passed an order in which he says that

the appeal was clearly against the final decree in the mortgage suit and accordingly that an ad valorem Court-fee should be paid. The petitioners

now object to the terms of this order.

The question thus is, whether an appeal against an order directing after contest that a final decree shall be passed in a mortgage suit should be

treated as an appeal against the final decree in that suit. Not much guidance can be obtained from reported cases. The learned District Judge has

referred to Bajrangi Lal v. Mahabir Kunwar I.L.R.(1913) A.476 but all that that lays down is that an appeal from a final decree in a mortgage suit

passed under Order 34, Rule 5, Code of Civil Procedure, requires an ad valorem Court-fee, a proposition which need not be disputed. In

Subbalakshmi Ammal Vs. Ramanujam Chetty and Another, Spencer and Krishnan, JJ., had to deal with an order dismissing an application for a

final decree in a suit for sale on a mortgage from the point of view of its appealability and there indeed they did hold that the effect of the order was

to dismiss the suit, thereby being technically a decree and appealable. I do not, however, find that case of much assistance here, because although

the effect of the order here no doubt would be that a final decree must be passed, it can hardly be said that this appeal is tantamount to an appeal

from that decree. We have only to consider what the permissible grounds in each case would be. In this appeal against the order, the grounds must

necessarily be limited to adducing cause why the final decree should not be passed; whereas once the decree is passed and an appeal is preferred

against it, grounds such as those would not avail the appellant, but he must attack the merits of the decree. I think it is quite clear, therefore, that the

scope of an appeal against the order would be different from that against the decree and further that the judgment-debtor has a right of appeal

against both. To charge him ad valorem fees in this appeal would mean, if he appealed against the decree, he would have to pay them twice over,

which I do not think can be correct. I must accordingly allow the petition and decide that the appeal preferred to the District Judge was properly

stamped and direct him to restore it to file and dispose of it according to law.

Petitioners will get their costs in this petition.