Patna High Court
T.K. Rowlins vs Lachmi Narain Jha And Ors. on 5 May, 1916
Equivalent citations: 44IND. CAS.50, AIR 1918 PATNA 210
ORDER Roe, J.
1. Three questions have been referred to me.
1. On what principle should fees be levied in appeals in mortgage suits in which a decree for interest has been made?
2. What is the correct Court-fee when relief is sought with regard to costs independently of the result of the main contest between the parties?
3. What are the Taxing Officer's powers under Section 12 of the Court Fees Act?
2. An application has also been made to me in Court to either refer the matter to a Division Bench, or pass an order that will be open to appeal under the Letters Patent.
3. The attention of the Bar may be drawn to the case reported as Khachera v. Kharag Singh 7 Ind. Cas. 315 : 7 A.L.J. 842 : 33 A. 20. A Division Bench has no power to deal with a stamp reference even when made by the Taxing Judge. Nor in my view will it avail the Bar to refuse to pay the Court-fees fixed by the Taxing Officer, and then apply to the Division Bench, before whom the case is laid for orders, to revise the order of the Taxing Officer Koer Karan Singh v. Gopal Rai 4 Ind. Cas. 123 : 32 A. 59 : 6 A.L.J. 972.
4. The decision of the Taxing Officer is final. The Court-fee fixed by him must be paid.
5. My decision on the points submitted after hearing the points fully argued is:
1. In the case of appeals or cross-objections in suits for redemption or foreclosure, in all oases in which the amount declared by the Court to be due at the date of the decree can be ascertained by reference to the judgment and the decree, it is that amount at which the appeal or cross-objection should be valued and future interest should not be taken into account. See Raghbir Prosad v. Shanker Bux Singh 21 Ind. Cas. 723 : 11 A.L.J. 1016 : 36 A. 40 and compare Vithal Hari Athavle v. Govind Vasudeo Thosur 17 B. 41 : 9 Ind. Dec. (N.S.) 27 with Reference under Court Fees Act, 1870 29 M. 367 : 16 M.L.J. 287).
The effect of this will be that in all original appeals the Court-fee will be levied on the sum due at the date of the original decree. In all second appeals the Court-fee will be levied on the sum due at the date of the decree of the lower Appellate Court.
2. This case falls under Section 17.
When the appeal against costs is distinct and separate from other parts of the appeal, Court-fees must be paid ad valorem on the costs decreed.
3. The position of the Court in these cases is clearly defined in Narain Singh v. Chaturbhuj Singh 20 A. 362 : A.W.N. (1398) 72 : 9 Ind. Dec. (N.S.) 592 When it was the appellant who failed to pay sufficient fees in the Courts below, his appeal will not be heard till the deficiency has been made good.
Where it was the respondent who was in fault, no decree shall be executed in his favour, until the deficiency has been made good.