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  • Mullick
  • Adami, JJ.
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Smart Summary

Structured Summary of the Opinion (Mullick, J.; 9 June & 4 July 1919)

Factual and Procedural Background

This summary follows only the facts and procedural history set out in the provided opinion.

On 24 March 1909 Murli, Brij Mohan and others executed a mortgage deed in favour of Mohan Krishna Dar for Rs. 40,000, with Rs. 15,000 to be deposited in Court to the credit of Abdul Ghani, who held a decree for that sum, and the balance Rs. 25,000 to be paid out of Court to discharge a usufructuary mortgage in respect of which Suit No. 112 of 1909 was pending.

On 26 March 1909 Mohan Krishna Dar deposited Rs. 15,904 in Court in payment of Abdul Ghani's decree (inclusive of interest). It was later discovered that Abdul Ghani's claim in respect of the usufructuary mortgage was Rs. 71,000, not Rs. 25,000. Mohan Krishna served notice to the mortgagors on 16 September 1909 to pay the difference; they failed to do so.

On 11 October 1909 Mohan Krishna brought Suit No. 106 of 1909 to recover Rs. 15,904. Summonses were allegedly served on 10 November 1909; an ex parte decree was obtained on 3 December 1909. Execution followed: attachment on 16 March 1910; notices under Order 21, Rule 66 CPC on 26 March 1910; sale proclamations 4 May 1910; sale held 6 June 1910; possession delivered 29 August 1910; mutation in Collector's registers on 1 September 1910.

Murli later disputed knowledge of the decree and on 31 May 1915 (with his minor son) instituted Suit No. 40 of 1915 in the Subordinate Judge's Court at Arrah to set aside the ex parte decree as obtained by fraud. In the interim, two other suits (Suit Nos. 168 and 169 of 1912) by other mortgagors had been decreed in the trial Court in respect of fractions of the property; those decrees were set aside by the High Court on 27 March 1917, holding the decrees and sales valid.

The Subordinate Judge nevertheless decreed the plaintiffs' suit on 30 March 1917 setting aside the ex parte decree and sale and allowing the plaintiffs to redeem their interest on payment of their proportionate share. The present appeal is brought by the heirs of Mohan Krishna Dar (defendants in the suit) against that decree.

Legal Issues Presented

  1. Whether the appeal lies to this Court or to the District Judge of Arrah — i.e., the question of appellate jurisdiction based on valuation and the subject-matter being below Rs. 5,000 as contended by the plaintiffs.
  2. How the suit should be classified and valued for court-fee and jurisdictional purposes (in particular whether it falls under Section 7, Clause 4(c) of the Court-fees Act and what is the correct valuation of the relief claimed).
  3. Whether the plaintiffs (who are respondent in the appeal) can be called upon, under Section 12 of the Court-fees Act, to pay a deficit of court-fee on the plaint and what sanction the appellate court may lawfully apply for non-payment (including whether dismissal under Section 10/Court-fees Act is permissible).
  4. Whether the appellate court ought to reject the plaint under Order 7, Rule 11 CPC instead of dismissing the suit as a sanction for non-payment of deficit fees under the Court-fees Act.

Arguments of the Parties

Plaintiffs / Respondents

  • Preliminary objection: the plaintiffs argued the appeal did not lie to this Court because the subject-matter (as they valued it) was below Rs. 5,000 and the proper appellate Court was the District Judge of Arrah.
  • The plaintiffs' counsel (Mr. Ganesh Dutt Singh) argued, relying on an observation in Narain Singh v. Ghaturbhuj Singh, that Section 12 of the Court-fees Act applies only where the plaintiff is the appellant; accordingly, the appellate Court could not call upon the plaintiff-respondent to pay the deficit nor dismiss the suit for non-payment under S.12.
  • The plaintiffs' counsel also relied on Stindar Mal Marwari v. J.G. Murray to argue that S.12 did not apply to the present case.
  • The learned vakil for the plaintiff-respondent argued in the trial Court that the first two prayers (declaration that decree obtained by fraud and that sale was void) were ancillary to the redemption prayer (i.e., the suit was effectively one for redemption).

Defendants / Appellants

  • The appellants sought to recover the plaintiffs' share and to defeat the plaintiffs' right of redemption except in respect of Mauza Ismailpur; they contended the appeal should proceed to this Court as valued for jurisdictional purposes by the respondents/parties was higher.
  • The appellants complied with the Court's order to pay the deficit court-fee upon the memorandum of appeal (depositing Rs. 975), and thus maintained that the appeal could proceed.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Narain Singh v. Ghaturbhuj Singh Appeal to the Court-fees Act — cited by the plaintiffs' counsel for the proposition that Section 12 applies only where the plaintiff is the appellant. The Court considered the argument but expressly disagreed with the restrictive interpretation relied upon by the plaintiffs' counsel (i.e., the Court did not accept that S.12 applies only where the plaintiff is the appellant).
Rajdeo Narain Singh v. Ramdil Singh (Second Appeal No. 104 of 1919) Authority for the proposition that, upon a plaintiff-respondent's failure to pay deficit court-fee, the appellate Court can call upon him to pay and enforce the order by dismissal of his suit. The Court treated that Division Bench decision as conclusive on the point and applied its rule: it held that the appellate Court could require payment of the deficit and dismiss the suit for non-payment.
Stindar Mal Marwari v. J.G. Murray Relied upon by plaintiffs' counsel to argue that Section 12 did not apply to the case before the Court. The Court found that authority of no assistance to the plaintiffs' argument and did not accept it as barring the application of S.12 in the manner the plaintiffs contended.

Court's Reasoning and Analysis

This section summarizes the Court's step-by-step legal analysis as contained in the opinion.

  1. Classification under the Court-fees Act and valuation for fee purposes:

    The Court held the suit falls under Section 7, Clause 4(c) of the Court-fees Act. For court-fee purposes the plaintiffs had valued the relief at Rs. 3,976 (their one-quarter share of Rs. 15,904), whereas for jurisdictional pleading they had valued the suit at Rs. 15,904. The Court emphasised that the valuation for fee purposes must accord with the value of the subject-matter and where parties fail to adduce evidence the Court must determine the valuation from the pleadings.

  2. Determination of plaintiffs' loss and correct valuation (for both fee and jurisdiction):

    The Court reasoned that if the decree had merely stood, the loss would have been Rs. 15,904, and because the decree was joint it suggested joint and several liability. However, since the sale had occurred, plaintiffs' loss was their interest in the property sold. That interest, on partition, would be one-fourth of the alleged total value of Rs. 2,20,000 (pleaded in para. 5), i.e., Rs. 55,000. Therefore the Court concluded the plaintiffs must pay ad valorem fees on Rs. 55,000, producing a court-fee liability of Rs. 1,200.

  3. Valuation of the redemption prayer:

    The Court considered whether the prayer for redemption constituted a separate cause of action under Section 17 of the Court-fees Act or a consequential relief. Adopting the view that it was consequential, the Court retained the Rs. 55,000 valuation and accordingly fixed the ad valorem fee at Rs. 1,200. It concluded there remained a deficit of Rs. 975 on the plaint.

  4. Calculation of the court-fee on the memorandum of appeal:

    The subject-matter of the appeal was computed as Rs. 55,000 less one-fourth of Rs. 3,500 (the value of Ismailpur according to the Subordinate Judge) = Rs. 54,125. The court-fee payable on the memorandum of appeal was therefore Rs. 1,200, leaving a deficit of Rs. 975.

  5. Orders as to payment and consequences for non-payment:

    The Court ordered that the appellants must pay the deficit of Rs. 975 before the appeal could be entertained and allowed time until 23 June to comply; on default the memorandum of appeal would be rejected. If the memorandum of appeal fee were paid, the plaintiffs would then be called upon, under Section 12 of the Court-fees Act, to pay the deficit of Rs. 975 on their plaint on or before 30 June. Failure by the plaintiffs to comply would result in dismissal of their suit without costs and the defendants' appeal being decreed with costs throughout.

  6. Interpretation and scope of Section 12 of the Court-fees Act:

    The plaintiffs' counsel argued Section 12 applied only where the plaintiff was the appellant; the Court rejected that restricted interpretation, relying on the Division Bench decision in Rajdeo Narain Singh v. Ramdil Singh which held the appellate Court could require payment by a plaintiff-respondent and dismiss the suit for non-payment. The Court held that Section 12 contemplates the application of Section 10 unless circumstances otherwise require, and that there was nothing in the law to prevent enforcement by dismissal. The Court further stated that, while the appellate Court could in its discretion stay execution of a decree as an alternative, the law did not limit the Court to that remedy alone.

  7. Rejection under Order 7, Rule 11 CPC vs dismissal under the Court-fees Act:

    The Court explained that Rule 11 of Order 7 (and Section 10 of the Court-fees Act) apply to different stages and that the procedure under Order 7, Rule 11 is not appropriate where the appellate Court acts under Section 12 of the Court-fees Act. In that situation, dismissal without option (i.e., dismissal of the suit) is the appropriate remedy rather than rejection of the plaint under O.7, R.11.

  8. Result on the present facts:

    Because the appellants complied with the order and paid the deficit on the memorandum of appeal but the plaintiffs failed to pay the deficit on the plaint by the date ordered, the Court held the prior order to be correct and decreed the appeal with costs throughout.

Holding and Implications

HOLDING: The Court ordered (and affirmed) that the proper valuation for fee and jurisdictional purposes was Rs. 55,000; the court-fee due on that valuation was Rs. 1,200, leaving a deficit of Rs. 975. The appellants were ordered to pay the deficit on the memorandum of appeal by 23 June (otherwise the memorandum would be rejected). The plaintiffs (respondents in the appeal) were directed under Section 12 of the Court-fees Act to pay the deficit of Rs. 975 on their plaint by 30 June, failing which their suit would be dismissed without costs and the defendants' appeal decreed with costs throughout. The appeal was ultimately decreed.

Implications:

  • Direct effect on the parties: the appellants' payment of the memorandum-of-appeal deficit enabled the appeal to proceed; the plaintiffs' failure to pay the plaint deficit exposed them to dismissal and resulted in the appeal being decreed in favour of the defendants.
  • On remedies and procedure: the Court affirmed that under Section 12 of the Court-fees Act an appellate Court may call upon a respondent-plaintiff to pay a deficit and may enforce non-payment by dismissal of the suit; it rejected the contention that Order 7, Rule 11 CPC (rejection of plaint) is the appropriate remedy in such appellate proceedings.
  • No broader new legal principle or novel precedent beyond the Court's application of existing authorities was announced in the opinion; the Court relied on the Division Bench decision in Rajdeo Narain Singh v. Ramdil Singh to support its enforcement approach under Section 12.

End of summary — all content above is drawn exclusively from the provided opinion text.

Show full summary ...

    Brij Krishna Das v. Murli Rai

    Mullick, J.:— (9th June 1919). — The history of the transactions which led to the present suit is as follows:

    On 24th March, 1909, Murli, Brij Mohan and others executed a mortgage deed in favour of Mohan Krishna Dar for Rs. 40,000. It was stipulated that a sum of Rs. 15,000 out of this amount was to be deposited in Court to the credit of Abdul Ghani, who had a decree for that sum upon a simple mortgage executed by Murli and Brij Mohan. It was also stipulated that the balance of Rs. 25,000 was to be paid to Abdul Ghani out of Court in discharge of a usufructuary mortgage in respect of which a suit, viz., No. 112 of 1909, was then pending in the Court of the Subordinate Judge of Arrah.

    2. On 26th March, 1909 Mohan Krishna Dar deposited the sum of Rs. 15,904 in Court in payment of the claim of Abdul Ghani, inclusive of interest, upon the decree above referred to. It was subsequently discovered that Abdul Ghani's claim upon the usufructuary mortgage was not Rs. 25,000 but Rs. 71,000, and on 16th September, 1909 Mohan Krishna Dar served a notice upon the mortgagors asking them to pay into Court the difference between those two sums within one month. The mortgagors having failed to comply, Mohan Krishna on 11th October, 1909 brought the suit numbered 106 of 1909 to recover from the mortgagors the sum of Rs. 15,904. It is alleged that summonses in the suit were served on 10th November, 1909, and the record shows that, on 3rd December, 1909, an ex parte decree was obtained by the plaintiffs. In execution of this money decree an attachment was effected on 16th March, 1910 of the mortgaged properties. On 26th March, 1910 notices were served under O. 21, R. 66 of the CPC. Sale proclamations were served on 4th May, 1910 and the sale was held on 6th June following. Possession was delivered on 29th August and mutation was made in the Collector's registers on 1st September. There were then certain proceedings for the appraisement of crops under Section 69 of the Ben. Ten. Act, which are only material for the purpose of showing that Murli had knowledge of the decree. Murli however denied such knowledge and, on 31st May 1915, he and his minor son instituted Suit No. 40 of 1915, in the Court of the Subordinate Judge of Arrah, to set aside the decree on the ground that it was obtained by fraud. The present appeal is preferred by the heirs of Mohan Krishna Dar, the defendant in that suit, against the decree of the Subordinate Judge setting aside the ex parte decree on 3rd December, 1909 and the sale of 6th June, 1910, and allowing the plaintiffs to redeem their interest in the property on payment of their proportionate share of the sum secured.

    3. It is necessary to explain here how the redemption of a fractional part of the mortgaged properties came to be allowed. On 2nd December, 1912 Har Prosad and others, representing some of the mortgagors, brought Suit No. 168 of 1912 in the Court of the Subordinate Judge of Arrah to set aside the decree and the sale, so far as they affected their 4 annas share in the property; and, on 10th December, 1912 Suit No. 169 of 1912 was instituted by Inderdeo and others, representing a second batch of mortgagors, in respect of their 5 annas 4 pies share. Those two suits were decreed, and it is alleged that the plaintiffs therein redeemed their 9 annas 4 pies share in the property on 14th January, 1915 upon payment of Rs. 11,666-10-0 to the mortgagees. There is next an allegation in the plaint in the present suit that the defendants have become proprietors of 2 annas 8 pies in the properties by purchase. The plaintiffs accordingly pray to redeem the residue, which is their 4 annas share, upon payment of their proportionate share of the sum secured.

    4. The Subordinate Judge decreed the suit on 30th March, 1917, notwithstanding the fact that on 27th March, 1917 the High Court had set aside the judgment and the decrees in Suits Nos. 168 and 169 of 1912, holding that the decrees and the sales were valid and dismissing the suits. Though this fact was brought to the notice of the Subordinate Judge, and though it was contended before him that the decision of the High Court operated as res judicata, the learned Subordinate Judge was unable to give effect to the objection, and decreed the suit as already stated.

    5. In the present appeal, a preliminary objection is taken by the plaintiffs that the appeal does not lie to this Court as the subject-matter is below Rs. 5,000, and that the Court which had jurisdiction to entertain the appeal was the Court of the District Judge of Arrah.

    6. In order to deal with this point, it is necessary to examine the reliefs claimed in the plaint. The first prayer is that it may be held that the money decree of 3rd December, 1909 was obtained fraudulently; the second is that it may be held that the sale of 6th June on the basis of the fraudulent decree was illegal, inoperative and null and void and the third is that the plaintiffs may be allowed to redeem, after setting off their claim for damages in regard to Mauza Ismailpur which is said, subsequent to the auction-purchase, to have been sold for arrears of Government revenue through the negligence of the auction-purchaser.

    7. Now, it is quite clear that the suit comes under Section 7, Clause 4 of the Court-fees Act, and, complying with the provisions of that section, the plaintiffs seem, in para. 9 of the plaint, to have valued their relief for court-fee purposes at Rs. 3,976, which sum represents their one-fourth share in the sum of Rs. 15,904 for which the decree of 3rd December was made. For the purpose of jurisdiction however the plaintiffs appear to have valued the suit at Rs. 15,904 only. Now, for the purpose of court-fees the valuation put by the plaintiff on a suit under S. 7, Cl. 4(c), is not to be an arbitrary valuation. It is to accord with the value of the subject-matter and in case of dispute is to be determined by the Court. In the case before us an issue as to the valuation and court-fee paid was raised, but it was decided by the learned Subordinate Judge in a most perfunctory manner, it being merely stated that there was no evidence to show that the valuation was insufficient. It was the duty of the learned Subordinate Judge to see that the Government revenue was adequately protected. That duty now falls upon us, and the parties having failed to adduce any evidence on the point, we are compelled to; make the valuation upon the pleadings.

    8. In this Court the principle has been 1, accepted that where a plaintiff asks for a declaration and consequential relief, he is to pay ad valorem fees in proportion to the loss from which he asks to be relieved. Here if there had been no sale and the decree had merely stood, his loss would have been Rs. 15,904. It has been contended that his loss would have been only a quarter of this sum, but the decree, being a joint decree, it would seem that he is jointly and severally liable for the whole. But the sale having taken place, the plaintiff's loss is now not the amount of the decree but his interest in the property sold. That interest, in the event of a partition, will be one-fourth and therefore the plaintiff's loss is one-fourth of Rs. 2,20,000, which is alleged in para. 5 of the plaint to be the value of the entire properties, that is to say, Rupees 55,000.

    9. As regards the prayer for redemption, it might be viewed either as a relief based upon a separate cause of action and as a distinct subject within the meaning of Section 17 of the Court-fees Act, or as a consequential relief. Adopting the latter view, we think the plaintiffs must pay ad valorem fees on Rs. 55,000 only, that is to say, Rs. 1,200.

    10. The lower Court appears to have treated the case as one of redemption pure and simple, and it has been contended by the learned vakil for the plaintiff-respondent before us that the first two prayers are only ancillary to the prayer for redemption. In my opinion this cannot be so, for, till the sale is reversed, the plaintiffs cannot redeem. It would not have been sufficient for them to bring a suit for redemption without making any mention of the decree and the sale, leaving it to the defendants to set up the decree as a bar to the suit. They could not, in a suit so framed, have been permitted to adduce evidence of fraud and get a declaration that the decree and the sale were inoperative. It might have been otherwise if the decree had been without jurisdiction, or if they had been defendants; but here it was of vital importance to them to set aside the decree and the sale by means of a declaratory decree. The result is that a sum of Rs. 975 is still due from the plaintiffs on account of deficit court-fee.

    11. For the purpose of jurisdiction, the case comes under Section 8 of the Suits Valuation Act, and must be valued at Rs. 55,000. The appeal therefore lies to this Court.

    12. In regard to the court-fee payable on the memorandum of appeal, it must be calculated upon the subject-matter of the appeal. The defendants-appellants seek to recover the plaintiffs' share and to defeat their right of redemption in all the inauzas, except Ismailpur, the value of which, according to the Subordinate Judge, is Rs. 3,500. The subject-matter of the appeal therefore is Rs. 55,000 less one-fourth of Rs. 3,500, i.e, Rs. 54,125. The court-fee payable therefore is Rs. 1,200 and there is a deficit of Rs. 975.

    13. The order therefore that we shall pass is that deficit court-fee to the extent of Rs. 975 must be paid by the appellants before the appeal can be entertained. They will have time till 23rd June for complying with this order. On default, the memorandum of appeal will be rejected. If, and when, the requisite court-fee upon the memorandum of appeal is paid, the plaintiffs will be called upon, under Section 12 of the Court-fees Act, to pay the deficit of Rs. 975 upon their plaint on or before 30th June. In the event of their falling to do so, their suit will be dismissed without costs and the appeal of the defendants will be decreed with costs throughout.

    14. Upon both parties complying with the orders in the matter of the deficit fees recoverable from them, the appeal will be set down for hearing on 4th July.

    15. Adami, J.:— I agree.

    (4th July 1919).—This case has been put up for hearing to-day because of an order made by us on 9th June, 1919, calling upon the appellants to deposit Rs. 975 as deficit due upon their memorandum of appeal.

    16. We held that the suit was not one for redemption, that it fell under Section 7, Clause (4)(c) of the Court-fees Act, and that court-fees should be paid upon the value of the relief claimed, which, in this case, was a sum of Rs. 54,125. The appellants have complied with that order and therefore so far as they are concerned, the appeal can proceed. But on the last date of hearing we found that the plaintiffs had not in the trial Court paid the full court-fee, that a further sum of Rs. 975 was due upon their plaint and we directed them, under Section 12 of the Court-fees Act, to make good that deficit on or before 30th June. This they have failed to do. Mr. Ganesh Dutt Singh, on behalf of the plaintiffs, says that he has communicated with his client but has received no reply and consequently is not in a position to say whether or not the plaintiffs intend to comply with our order. But he has addressed an argument to us upon Section 12 of the Act, the purport of which is that, under this section, we have no power either to call upon the plaintiffs to pay the money, nor, in the event of the plaintiffs' failure to comply with our order, to dismiss the suit by applying the provisions of S. 10. The learned vakil relies upon certain observations made by a learned Judge of the Allahabad High Court in the case of Narain Singh v. Ghaturbhuj Singh(1), and contends that Section 12 of the Act only applies to a case in which the plaintiff is the appellant. With great respect, if that is the meaning of the judgment, I venture to differ, and, so far as this Court is concerned, it seems to me that the matter is concluded by the decision in the case of Rajdeo Narain Singh v. Ramdil Singh, in Second Appeal No. 104 of 1919, in which a Division Bench held, that upon the plaintiff-respondent's failure to pay the deficit court-fee, it was competent to the appeal Court to call upon him to pay the deficit and, in the event of his being unable to pay, to enforce the order by the dismissal of his suit.

    17. I can find nothing in S. 12 which would debar the Court from enforcing its order in this manner. The section clearly contemplates that S. 10 is applicable, unless the circumstances of the case do not permit. It is contended that all that the appeal Court can do is to hold the decree, which has been obtained by the defaulting party, in abeyance and to direct that it shall not be executed until such time as the order in respect of the deficit is complied with. It would seem that the Court can, if it so pleases, adopt this remedy in exercise of its inherent powers, but there is nothing in the law which says that this is the only remedy which it is open to the Court to apply. I cannot therefore accede to the argument, that the respondent is entitled to be heard in the appeal, that it is only if he loses that we can impose any penalty upon him, and that, in any event, the utmost that the Court can do is to stay the execution of his decree. The learned vakil also endeavoured to argue on the authority of Stindar Mal Marwari v. J.G Murray(2) that S. 12 does not at all apply to the case before us. In my opinion that case is of no assistance to him.

    18. Finally it has been contended that even if we decide that the plaintiffs are liable to be called upon to pay the deficit, before they can be heard in the appeal, the proper order that we should make is not that the suit should be dismissed, but that the plaint should be rejected under O. 7, R. 11 of the CPC. In my opinion R. 11, O. 7 and Section 10 of the Court-fees Act, apply to different stages of a suit. The procedure of R. 11 of the former Act is not applicable to a case in which an appeal Court acts under Section 12 of the latter Act. In such a case the rejection of the plaint is an inappropriate remedy and the law enjoins a dismissal without option, though it may be that the result of the dismissal from the point of view of res judicata is the same as that of a rejection.

    19. In these circumstances, the order made by us seems to be perfectly correct and;the appeal has been rightly decreed with;costs throughout.

    V.S/R.K

    20. Appeal decreed.

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    Comments

    Brij Krishna Das v. Murli Rai
    (Jul 4, 1919)