Patna High Court
Jamuna Rai vs Ramtahall Raut And Ors. on 1 August, 1921
Equivalent citations: 77IND. CAS.1039, AIR 1922 PATNA 387(2)
JUDGMENT Jwala Prasad, Acting C.J. 1. The learned Vakil for the respondents disputes the view taken by the Stamp Reporter that there is a deficiency on the part of the respondents with respect to the Court-fee payable by them in the lower Appellate Court to the extent of RS. 9. The respondents were plaintiffs in the and instituted the suit enforce a Mortgage claiming Rs. 757-3-3 principal, with interest at the bond rate up to the date of realization at the rate entered in the bond. The suit was dismissed by the Munsif. They appealed to the District Judge, paying a Court-fee on the aforesaid sum of Rs. 757-3-3, which they had paid on the plaint. The lower Appellate Court reversed the decision of the Munsif and decreed the plaintiffs suit with costs in both the Courts. As to interest the decree directed that interest was to be paid at the bond rate up to the date of grace, which was six months from the date of the decree, namely, 1st April 1920. There was also direction as to future interest up to the date of payment. 2. The lower Appellate Court prepared the decree stating the principal to be Rs. 311 and interest at the bond rate of 2 per cent per annum up to the 8th September 1918, the date of filing the plaint, making a total of Rs. 757-3-3, upon which Court-fee was paid on the plaint as well as on the memorandum of appeal. To this sum the lower Appellate Court added in the decree a further sum as interest at the bond rate from the date of the plaint up to the date of its decree, namely, 1st April 1920.This sum came up to Rs. 117-3 no Court-fee was paid by the plaintiffs upon this additional sum added in the decree. 3. It may be conceded that the suit having been dismissed the plaintiffs were entitled to value their appeal at the sum of Rs. 757-3-3 claimed in the plaint in respect of the principal and interest up to the date of filing the plaint and they were not bound to value the future interest, which they claimed from the date of the suit tip to the date of realization, or to pay any Court-fee there under, as was held in Srinivasa Row v. Ramaswami Chetti 10 M.L.J. 144, and Ramasami v. Subbusami 13 M. 508 : Ind. Dec. (N.S.) 1066. But in the present case the plaintiff obtained a decree not only for Rs. 757-3-3 at which they had valued their appeal and which they had claimed in the plaint but for a larger sum, namely. Rs. 874-6-3 which was arrived at by adding Rs. 117-3-0 as interest from the date of the suit, up to the date of the lower Appellate Court's decree. The plaintiffs cannot contend that this sum has been wrongly entered in the decree as there is no cross-appeal on their behalf. This is not, therefore, an unascertained sum but has now been specified in the decree and the plaintiffs are entitled to recover it by mere execution of the decree. 4. It has been well-settled, that the plaintiff-decree-holder seeking to enforce a decree directing payment of future interest, is bound to pay the Court-fee upon the interest claimed by him in execution for which no Court-fee was, paid in the suit. There can hardly be any doubt that a mortgagee seeking to enforce the mortgage and praying to recover the amount due there under has to pay Court-fee not only upon the sum decreed but also upon the interest that becomes due to him subsequent to the decree and which he claims in the execution. It is also obvious that the lower Appellate Court was not bound and should not have passed a decree for a larger sum than that claimed by the plaintiffs in the memorandum of appeal unless, before the judgment was pronounced, an amendment of the memorandum of appeal was allowed and proper Court-fee paid in Percival v. Collector of Chittagong 30 C. 516. The plaintiffs accepted the decree of the Court below and it appears that the decree was signed by the Pleader of the parties. The value of the appeal was, therefore, admittedly increased, by adding to the decree, the amount of future interest from the date of the institution of the suit to the date of the lower Appellate Court's decree. The plaintiffs are, therefore, bound to pay additional Court-fee and the view taken by the Stamp Reporter appears to be correct. 5. The deficit Court-fee having just been paid, the appeal will be heard. Ross, J.
6. I agree.