Tarapada Mitra vs Rani Jagadamba Kumari

Roe, J.—The first question for consideration is whether Notification VI, Appendix O, Part A, applies to application for execution of a decree in respect to interest accruing since the date of the decree itself. The ruling reported as Vithal Hari Athavle v. Govind Vasudeo Thosar 17 B. 41 : 9 Ind. Dec. (n.s.) 27 is of a date prior to the repeal of the old Civil Procedure Code. By the re-drafting of Section 244 in the form now taken by Section 47 of the new Code, the notification under consideration has been to a great extent annulled, and now operates mainly upon orders which are appealable under Order XL III. It cannot affect the provisions of Section 47, Clause (2), which is entirely new. That clause distinctly contemplates the levy of a Court-fee upon proceedings which are of the nature of a separate suit. It was clearly intended to apply to oases like the present. There is no reason at all why a distinction should be made between the price paid by a suitor for the aid of the Court in the recovery of a sum due upon the original plaint and the price paid for the aid of the Court in the recovery of the sum due upon a petition supplementing the original plaint. In equity and in law the appellant is required to pay a Court fee upon any sum for the recovery of which he asks the assistance of the Court.

The next question is what sum should be paid in this instance. Obviously the plaintiff should pay a Court-fee on any amount which is in addition to the sum named in the decree that he seeks to execute. I am not concerned with the Court-fee paid in the Subordinate Judge''s Court. In this Court it will be necessary only to consider how much the appellant hoped to get from the Subordinate Judge and still hopes to get from this Court in addition to the sum which he had obtained by his original decree, and deduct from that sum the amount which he actually did get from the Subordinate Judge. The result will be the value of the relief which he seeks in appeal. Upon that value an ad valorem Court-fee must be paid.