- Bookmark
- Share
- CaseIQ
Munshi Mahton And Ors. v. Lachman Lal And Ors.
Structured Summary of the Provided Opinion
Factual and Procedural Background
The plaintiff instituted a suit seeking (a) a declaration that a mortgage decree, obtained on the basis of a mortgage bond executed by his son (defendant No. 9), could not be executed by sale of the mortgaged property because the property was joint family property, and (b) an injunction restraining defendants Nos. 1 to 8 (the decree-holders) from executing that decree.
For the plaint the plaintiff valued the property at Rs. 500 and paid a court-fee of Rs. 47.8.0 (Rs. 47-8-0) based on that valuation. The Subordinate Judge, Registrar of Patna, considered that court-fee should have been calculated on the amount of the mortgage decree (Rs. 2 298-10-9) and ordered the plaintiff on 28th September 1926 to pay the deficit court-fee by 30th September 1926. The plaintiff did not pay the deficit and the Munsif rejected the plaint on 4th October 1926 for non-payment. The plaintiff appealed to the Subordinate Judge of Patna; the appeal was filed on 1st December 1926.
Before the learned Subordinate Judge two preliminary objections were taken by the respondents (defendants Nos. 1 to 8): (1) the appeal was barred by limitation, and (2) the court-fee (stamp) on the memorandum of appeal was insufficient. The Subordinate Judge decided some issues and the matter proceeded to this opinion delivered by Maepherson, J., with an agreeing concurring note.
Legal Issues Presented
- Whether the appeal to the Subordinate Judge was barred by limitation, i.e., whether the period of annual vacation could be excluded when computing the time for filing the appeal (application of Section 12 of the Limitation Act).
- Whether the memorandum of appeal was properly stamped (one-rupee stamp) or whether ad valorem court-fee was required because an order rejecting a plaint is a "decree" within Section 2(2) of the Code of Civil Procedure, thereby attracting ad valorem stamp requirements rather than the lump-sum fee in Article 11 of Schedule II of the Court-Fees Act.
- What is the proper valuation for court-fee purposes in a suit seeking to restrain execution of a mortgage decree on joint family property — i.e., whether the relevant value is the value to the plaintiff (his share in the property) or the amount of the execution-debt.
Arguments of the Parties
Appellant's Arguments
- The plaintiff-appellant valued the property at Rs. 500 and paid the corresponding court-fee; he contends the plaint should be admitted on that valuation.
- On the limitation point, the appellant relied on the earlier decision in Debicharan Lal v. Mehdi Hussain to support exclusion of the court vacation period when computing limitation, arguing the appeal was filed within time.
- On the stamping/court-fee point, the appellant offered (before the Subordinate Judge) to pay any deficit court-fee on the memorandum of appeal if the appellate court held the stamp insufficient; he sought an opportunity to pay the deficit.
Respondents' Arguments
- Respondents contended the appeal was barred by limitation and relied on a later Full Bench decision (Jyotindra Nath Sarkar v. Lodna Colliery Co.) to argue that the earlier Debicharan Lal decision was overruled.
- They also maintained that the court-fee on the memorandum of appeal was insufficient (argument for only one-rupee stamp), relying on the language of Article 11 of Schedule II of the Court-Fees Act as interpreted by the learned Subordinate Judge to treat the memorandum as bearing only a one-rupee fee.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Debicharan Lal v. Mehdi Hussain (35 Ind. Cas. 888; 1 P.L.J. 485; 20 C.W.N. 1303; 1 P.L.W. 209) | Held that a litigant is entitled to exclude the period during which the Court is closed (annual vacation) under Section 12 of the Limitation Act when computing the period of limitation for an appeal, in circumstances where copies were not obtainable during the closure. | The court applied this decision directly to the present facts and held that the appeal filed on 1st December 1926 was not barred by limitation because the vacation period could be excluded. |
| Jyotindra Nath Sarkar v. Lodna Colliery Co. (62 Ind. Cas. 649; 2 P.L.T. 361; (1921) Pat. 177; 6 P.L.J. 350) (Full Bench) | Held that if an appellant does not apply for copies until after the prescribed period under the Limitation Act has expired, he is not entitled to deduct the time between signing of the decree and delivery of the judgment — with a qualification: "provided copies were obtainable within that period." | The court considered respondents' contention that this Full Bench overruled Debicharan Lal and concluded it did not. The opinion distinguished the Full Bench holding by emphasizing the proviso regarding availability of copies and maintained that Debicharan remains applicable to cases where copies were not obtainable during the vacation. |
| Phul Kumari v. Ghanshyam Misra (35 C. 202; 7 C.L.J. 36; 35 I.A. 22; 12 C.W.N. 169; 10 Bom. L.R. 1; 17 M.L.J. 618; 2 M.L.T. 506; 14 Bur. L.R. 41; 5 A.L.J. 10 (P.C.)) | Principle that "the value of the action must mean the value to the plaintiff" — where the value of the property to the plaintiff is less than the execution-debt, the amount of the execution-debt does not determine the value for court-fee purposes; only if the debt is less than the value of the property does the debt affect the suit's value. | The court applied this principle to hold that the valuation for court-fee purposes is the plaintiff's value (his interest in the property). Thus the plaintiff's valuation of Rs. 500 must be accepted for admission of the plaint (subject to later proof to the contrary), and the plaintiff is not immediately liable for court-fee based on the full decree amount. |
| Bankey Behari v. Ram Bahadur (44 Lad. Cas. 891; 4 P.L.J. 191; 4 P.L.W. 281; (1918) Pat. 223) | Applied the principle in Phul Kumari to hold that a plaintiff's court-fee liability is based on the value of the property as regards the plaintiff's share (not on the full decree amount) when the decree exceeds the plaintiff's interest. | The court relied on this decision to reinforce that the plaintiff's valuation of Rs. 500 (his share) should be accepted for admitting the plaint and that only if later established that the property is worth more may the court demand a higher court-fee up to the decree amount sought to be executed. |
Court's Reasoning and Analysis
The court addressed the preliminary objections in turn and explained the legal bases for its conclusions. The reasoning followed the sequence of issues raised before the Subordinate Judge.
Limitation Objection
The court reviewed the chronology: the Munsif's order rejecting the plaint was dated 4th October 1926; the Civil Courts closed for annual vacation on 5th October 1926 and re-opened on 8th November 1926. The plaintiff applied for and obtained copies on 23rd November 1926 and filed the appeal on 1st December 1926. The learned Subordinate Judge had relied on Debicharan Lal v. Mehdi Hussain and held that the vacation period could be excluded under Section 12 of the Limitation Act. The present court accepted that analysis: Debicharan directly applies and supports exclusion of the vacation period, rendering the appeal timely.
The court also considered the respondents' contention that the Full Bench decision in Jyotindra Nath Sarkar had overruled Debicharan. The court analysed the Full Bench's language and observed that Jyotindra Nath Sarkar did not, in substance, overrule Debicharan because the Full Bench tied its rule to the availability of copies during the prescribed period (it denied exclusion only where copies were obtainable within the period but the appellant delayed applying). Thus the court distinguished the Full Bench decision and reaffirmed that Debicharan governs the present situation where copies were not obtainable within the closed period, and therefore the appeal was not barred by limitation.
Stamp / Court-Fee Objection
On the second objection the court examined the applicable provision, Article 11 of Schedule II of the Court-Fees Act, which prescribes a one-rupee fee for "Memorandum of appeal ... when the appeal is not from a decree or an order having the force of a decree ... to any Civil Court other than a High Court." The learned Subordinate Judge had interpreted Article 11 to require only a one-rupee fee on the memorandum of appeal against the order rejecting the plaint.
The court analysed the Code of Civil Procedure, noting that Section 2, clause (2) of the Code of Civil Procedure defines "decree" to include an order rejecting a plaint. Because an order rejecting a plaint is therefore a "decree" under the Code, an appeal against such an order is an appeal against a decree and must attract ad valorem court-fee. The court found that the learned Subordinate Judge erred by relying on the wording of Article 11 as it stood after omission of the erstwhile words "from an order rejecting a plaint," a textual omission effected by Section 155 read with Schedule IV of the Code. The court explained the legislative background: before the Code of 1908, orders rejecting plaints were not decrees, so Article 11 had been drafted for that earlier regime; the Code's deeming provision changed the classification and hence the requisite ad valorem fee applies.
Consequently, the court concluded the memorandum of appeal was insufficiently stamped. However, the court recorded that the appellant had offered to pay any deficit; the court directed that the appellant be given an opportunity by the Subordinate Judge to pay the proper ad valorem court-fee (valuing the memorandum at Rs. 500) within a time to be fixed.
Valuation and Effect on Court-Fee Liability
The court considered the nature of the relief sought (restraining execution of the decree as regards joint family property) and applied the principle from Phul Kumari and the decision in Bankey Behari v. Ram Bahadur: the relevant valuation for court-fee purposes is the plaintiff's value (his interest in the property) or the amount of the decree sought to be set aside, whichever is smaller. As the plaintiff valued his interest at Rs. 500, that valuation was accepted for admitting the plaint (subject to possible later revision if the true value is shown to be higher).
Holding and Implications
The court made the following dispositive rulings:
- The learned Subordinate Judge's conclusion that the appeal was barred by limitation was reversed: the appeal was held not to be barred because the annual vacation period could be excluded under the principle applied in Debicharan Lal v. Mehdi Hussain (applied under Section 12 of the Limitation Act), and the Full Bench decision relied on by respondents did not displace that principle in the present facts.
- The court held that the learned Subordinate Judge's decision that the memorandum of appeal was properly stamped was set aside. The memorandum was insufficiently stamped because an order rejecting a plaint is a "decree" under Section 2(2) of the Code of Civil Procedure and an appeal against such an order requires ad valorem court-fee rather than the fixed one-rupee fee in Article 11 of Schedule II.
- The court directed that the appeal be remitted to the learned Subordinate Judge with instructions to give the plaintiff-appellant an opportunity to pay the proper ad valorem court-fee on the memorandum of appeal (the memorandum to be valued at Rs. 500 for this purpose) within such time as the Subordinate Judge may fix. If the deficit is paid, the plaint shall be ordered to be admitted and the case returned to the Munsif for further disposal according to law.
- Costs: the costs of this appeal and of the appeal before the learned Subordinate Judge were ordered to be "costs in the cause."
Implications: The direct practical consequence is that the plaintiff must be allowed to cure the insufficient stamping by payment of the ad valorem deficit (valuing his interest at Rs. 500); upon payment, the plaint is to be admitted and the suit proceeds before the Munsif. The opinion applies and reconciles prior authority on limitation and valuation for court-fee; it does not purport to establish a new principle of law beyond those applications.
Maepherson, J. delivered the principal opinion; another judge concurred ("I agree").
1. The suit out of which the present appeal arises was instituted by the plaintiff for a declaration that a mortgage decree obtained on the basis of a mortgage bond executed by his son, the defendant No. 9, could not be executed by the sale of the mortgaged property which was a joint family property and for an injunction restraining the defendants Nos. 1 to 8, the decree-holders from executing the decree. The plaintiff valued the property which was sought to be sold in execution of the mortgage decree at Rs. 500 and he paid a Court-fee of Rs. 47.80 upon the value of the property as alleged by him.
2. The Subordinate Judge, Registrar of Patna before whom the plaint was filed was of opinion that the plaintiff should pay Court-fee upon the amount of the mortgage decree which was Rs. 2 298-10-9 He accordingly by his order of the 28th September, 1926, called upon the plaintiff to pay the deficit amount of Court-fee by the 30th September, 1926. The plaintiff having failed to pay the deficit Court-fee the matter was placed before the Munsif who rejected the plaint on account of non-payment of the deficit Court-fee by his order dated the 4th October, 1926 Against this order the plaintiff preferred an appeal which came on for hearing before the Subordinate Judge of Patna.
3. Two preliminary objections were taken before the learned Subordinate Judge on behalf of the respondents, namely, the defendants Nos. 1 to 8 in the suit. The first objection was that the appeal before the Subordinate Judge was barred by limitation and the second objection was that the Court-fee paid on the memorandum of appeal was insufficient. As regards the objection relating to limitation the facts are these. The order rejecting the plaint was made on the 4th October, 1926, and the Civil Courts closed for the annual vacation on the 5th October, 1926. The Court re-opened on the 8th November, 1926. The plaintiff applied for a copy of the order on the 23rd November, 1926, and the copy was furnished to him on the same day. The appeal before the Subordinate Judge was filed on the 1st December, 1926. The question is whether the plaintiff was entitled to exclude the period of the vacation in computing the period of limitation for the appeal. The learned Subordinate Judge has held that he is entitled to exclude that period on the authority of the decision of this Court in Debicharan Lal v. Mehdi Hussain 35 Ind. Cas. 888 : 1 P.L.J. 485 : 20 C.W.N. 1303 : 1 P.L.W. 209. There also the facts were similar to the facts of the present case. In that case the decree was passed on the 27th September, 1913. The Court closed from the 28th September to the 31st October both days inclusive. The defendant applied for a copy of the judgment on the 3rd November that is, two days after the re opening of the Court and for a copy of the decree on the 13th November and both the copies were delivered to him on the 21st November, and the appeal was actually filed on the 28th November, and it was held that under those circumstances the appeal was filed within time inasmuch as the appellant was entitled to exclude the period during which the Court was closed, namely, from the 28th September to the 31st October. The learned Chief Justice held that the appellant was entitled to exclude that period under the provisions of Section 12 of the Limitation Act. This case applies directly to the facts of the present case and applying the view taken by the learned Judges in that case it must be held that the present appeal before the learned Subordinate Judge was not barred by limitation.
4. It is contended, however, on behalf of the respondents that the later Full Bench decision of this Court in Jyotindra Nath Sarkar v. Lodna Colliery Co. 62 Ind. Cas. 649 : 2 P.L.T. 361 : (1921) Pat. 177 : 6 P.L.J. 350 (F.B.) has overruled) the decision of this Court in Debi Charan Lal v. Mehdi Hussain 35 Ind. Cas. 888 : 1 P.L.J. 485 : 20 C.W.N. 1303 : 1 P.L.W. 209. I am, however, of opinion that the Full Bench decision does not overrule the previous decision of this Court. It, no doubt, holds that if the appellant does not apply for copies until after the expiration of the period prescribed under the Articles of the Limitation Act he is not entitled to deduct the time between the actual signing of the decree and the delivery of the judgment. But then this observation is qualified by the words "provided copies were obtainable within that period". This proviso clearly shows that if copies were not obtainable then the appellant is entitled to exclude that period. It is clear that if the judgment in the case is delivered on the day previous to the closing of the Court the appellant is entitled to exclude the period during which the Court was closed in order to compute the period of limitation for the appeal against that judgment. The decision of the learned Subordinate Judge on the point of limitation is correct.
5. As regards the other preliminary objection taken before him, namely the insufficiency of the stamp on the memorandum of appeal, the decision of the learned Subordinate Judge is manifestly wrong. The suit, as I have already said, was valued at Rs. 500, namely, the value of the property which the defendants wanted to sell and the plaintiff paid a Court-fee of Rs. 47-8-0 upon the plaint which was the proper Court-fee upon the valuation of the suit. On his memorandum of appeal he paid a Court-fee of one rupee only on the ground that the appeal was against an order and not against the decree. The learned Subordinate Judge has referred to Article 11 of Schedule II of the Court-Fees Act and has held that this Article provides that appeals against orders rejecting a plaint are to be treated as miscellaneous appeal and the memorandum of appeal has to be stamped with a stamp of one rupee only. Now what Article 11 of Schedule II provides is as follows:
Memorandum of appeal (or of cross-objection) when the appeal is not from a decree or an order having the force of a decree and is presented (I quote only so much as is necessary for the purposes of this appeal) to any Civil Court other than a High Court shall bear a Court-fee of one rupee.
6. Now, it is clear on a consideration of this Article that ad valorem Court-fee has to be paid on a memorandum of appeal against a decree or order having the force of a decree. An order rejecting a plaint is a decree within the definition of the term in Section 2, Clause (2) of the Code of Civil Procedure Therefore, a memorandum of appeal against an order rejecting a plaint must be stamped ad valorem. The learned Subordinate Judge has clearly fallen into an error on account of the words "from an order rejecting a plaint or" which originally stood in Article 11 having been omitted therefrom by Section 155 read with Schedule IV of the Code of Civil Procedure. The reasons for the omission of those words are clear. Before the Code of 1908, orders rejecting a plaint were not treated as decrees. It was by the definition of the term 'decree' in the Code of 1908 that orders rejecting plaints were deemed to be decrees and as Article 11 does not provide for an appeal against a decree it is clear that an appeal against an order rejecting a memorandum of appeal does not come within the purview of the Article. It is clear, therefore, that the memorandum of appeal was insufficiently stamped.
7. It is, however, stated by the learned Advocate for the respondent that he filed an application before the learned Sub-ordinate Judge offering to pay the deficit Court-fee if it was held that the memorandum of appeal was not properly stamped. The learned Subordinate Judge having found that the memorandum of appeal was sufficiently stamped passed no orders upon that petition. The plaintiff-appellant before the learned Subordinate Judge will be entitled to have an opportunity to pay the deficit Court fee on his memorandum of appeal before him valuing the memorandum of appeal at Rs. 500.
8. Then as regards the main question raised in the appeal before the learned Subordinate Judge, it is clear that what the plaintiff was seeking in the suit was a relief in respect of the joint family property which he claimed could not be sold in execution of a mortgage decree obtained against the defendant No. 9. He was, therefore, interested only to the extent of the value of the property. He could not be made liable for the amount of the decree in excess of the joint family property which was sought to be sold in execution of the decree. The following observations of their Lordships of the judicial Committee in Phul Kumari v. Ghanshyam Misra 35 C. 202 : 7 C.L.J. 36 : 35 I.A. 22 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 17 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 5 A.L.J. 10 (P.C.) apply to the facts of the present case:
The value of the action must mean "the value to the plaintiff. But the value of the property might quite well be Rs. 1,000, while the execution debt was Rs. 10,000. It is only if the execution debt is less than the value of the property that its amount affects the value of the suit.
9. This question was considered by this Court in Bankey Behari v. Ram Bahadur 44 Lad. Cas. 891 : 4 P.L.J. 191 : 4 P.L.W. 281 : (1918) Pat. 223. In that case the value of the property so far as the plaintiff's share was concerned, was only Rs. 1,300 while the value of the decree sought to be set aside was Rs. 12,200. Their Lordships applied the principle laid down in Phul Kumari v. Ganshyam Misra 35 C. 202 : 7 C.L.J. 36 : 35 I.A. 22 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 17 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 5 A.L.J. 10 (P.C.) and held that the plaintiff was liable to pay a Court-fee only on the value of the property. It is clear, therefore, that in cases like this the value of the relief which the plaintiff seeks must be the value of the property with which he is concerned or the amount of the decree which he wants to get rid of, whichever sum may be smaller. The plaintiff has in the present case valued the property at Rs. 500. That valuation must be accepted for the purposes of admitting the plaint. It would no doubt be open to the Court at any subsequent stage to demand a Court-fee on a sum higher than Rs. 500 if it is subsequently established that the value of the property is more than Rs. 500, up to the value of the decree, which is sought to be executed and the execution of which is sought to be restrained.
10. The result is that the order of the learned Subordinate Judge in so far as he decided that the memorandum of appeal before him was properly stamped must be set aside. His decision on the other points will be affirmed. The appeal will go back to the learned Subordinate Judge for giving an opportunity to the appellant before him to pay the proper Court-fee on the memorandum of appeal within such time as he may fix for the purpose. In case of such deficit being paid, the plaint will be ordered to be admitted and the case sent back to the Munsif for disposal according to law. Costs of this appeal and of the appeal before the learned Subordinate Judge will be costs in the cause.
Maepherson, J.
11. I agree.
Alert