1. This is an appeal from the decree dated 17th February 1926 passed by the learned District Judge, Agra, purporting to dismiss the plaintiff-appellant's appeal before him for non-payment of Court-fee within a time granted for deficiency therein being made good.
2. The plaintiff-appellant brought the suit out of which the present appeal has arisen for redemption of a mortgage without payment of amount, or in the alternative on payment of Rs. 3,661. The Court of first instance decreed the slaim on payment of Rs. 27,000 within the usual period of grace. The plaintiff appealed to the District Judge of Agra valuing his appeal at Rs. 3,203-10-0. By an order, dated 7th January 1926, the learned District Judge ruled that the Court-fee payable on appeal should be calculated on Rs. 27,000, which was held to be the value of the appeal before him. Three weeks' time was allowed to the plaintiff to make good the deficiency. An extension of two weeks was allowed subsequently.
3. Before the expiry of the period within which deficiency in the Court-fee should have been made good an application was presented on behalf of the plaintiff-appellant on 9th February 1926 which declared that out of Rs. 27,000 found to be due on the mortgage, the plaintiff withdrew his contest to the extent of Rs. 12,894, leaving Rs. 14,106 to which the appeal was confined. The Court-fee on this sum amounted to Rs. 610 of which Rs. 165 had already been paid and Court-fee stamps of the value of the remaining Rs. 445 were put in. The application prayed:
“that the valuation of the appeal is fixed at Rs. 14,105, and notice be now issued to the opposite party.”
4. The learned District Judge did not give effect to the prayer contained in the application already referred to and dismissed the appeal by an order which runs thus:
“I do not see any reason to revise the order of the 7th January 1926 and the reasons given appear unsound. As the period allowed for depositing the extra Court-fee has elapsed (on 11th February 1926) and the extra Court-fee has not been deposited, I dismiss the appeal in default of compliance with the order.”
5. We are unable to agree with the learned District Judge that the plaintiff's application dated 9th February 1926 was one praying for reconsideration of the order, dated 7th January 1926. In substance it was one seeking to amend ithe valuation of appeal by foregoing part of the claim made in the original memorandum of appeal and by confining it to a lesser amount, viz., Rs. 14,106. It is always open to a plaintiff or an appellant to reduce his claim and effect a saying of Court-fee if otherwise permissible. In so far as he submits to the decree appealed against, it becomes final, and the appeal is limited to the amount in contest on which alone Court-fee need be paid. The prayer in the concluding part of the application dated 9th February 1926:
“that the valuation of the appeal be fixed at Rs. 14,106”
clearly shows what the object of the plaintiff-appellant was. He would have been well-advised if consequential amendment in the memorandum of appeal were prayed for, but the substance of what he desired is clearly borne out by the application.
6. Having regard to the nature of the application, dated 9th February 1926 above indicated, and to the fact that the requsite Court-fee was paid within the five weeks allowed by the order, dated 7th January 1926, we are of opinion that the learned District Judge was not justified in dismissing the appeal on the ground on which he dismissed it.
7. We, therefore, set aside the decree of the learned District Judge appealed against and direct that the plaintiff-appellant's appeal before him be heard and disposed of on the merits after the formal amendment of the memorandum of appeal is made by him.
8. There is nothing to show that the respondents opposed the application, dated 9th February 1926 before the learned District Judge, though they contested the appeal before us. The appellant will, under the circumstances of the case, receive half of his costs in this Court from the respondents. The costs in the Court below will abide the result.
R.D
9. Decree set aside.