The Judgment of the Court was as follows:—
The subject-matter of the litigation which has culminated in this appeal is immoveable property of considerable value comprised in a mortgage security executed by the Plaintiffs in favour of the first two Defendants. A decree was made on the basis of the mortgage on the 31st August 1916 and an appeal to this Court was dismissed on the 22nd March 1918. The case for the Plaintiffs is that after the disposal of the appeal there was an adjustment of the decree and that in contravention of such adjustment the decree was fraudulently executed with the result that the mortgaged properties were brought to sale. It is asserted that they were purchased by the decree-holders in the name of the fourth Defendant. Subsequently, on the application made on the 21st January 1920, a personal decree was made in due course on the 17th June 1920. The Plaintiffs seek to have a twofold declaration, namely, first, that their title to the mortgaged properties has not been affected by the execution proceedings which they contend were void and no better than nullity; and secondly, that, if the view be correct, no personal decree could have been made against them. One of the objections taken by the Defendant is that the suit has not been properly valued and that proper court-fees have not been paid on the plaint. The Subordinate Judge has held that this objection is well-founded. But though he has found this issue against the Plaintiffs he has not called for deficit Court-fees, as in his opinion, the suit is otherwise barred by specific rule of law. He has proceeded to hold that the suit is barred by limitation as also by the provisions of sec. 47 and Or. 21, r. 92, C.P.C In this view, he has dismissed the suit. The Plaintiffs have appealed against the decree.
We are of opinion that the view taken by the Subordinate Judge that the suit has not been properly valued and that proper court-fees have not been paid cannot be supported. When we look at the plaint, the suit appears to us to be substantially a suit for possession of land within the meaning of sec. 7, cl. 5, sub-cl. (a) of the Court Pees Act, 1870. Under the provision of law, in a suit for possession of land, the amount of court-fee payable is according to the value of the subject-matter and where the subject-matter is land which forms an entire estate or a definite share of an estate paying annual revenue to the Government and such revenue is permanently settled, the value is deemed to be ten times the revenue so payable. The Plaintiffs allege in their plaint that although the estimated market value of the subject-matter of litigation is Rs. 16,673, ten times the revenue payable is Rs. 794-5-3 and they have paid court-fees on this sum. It has been argued, however, on behalf of the Respondents Unit the suit falls within the description of a suit to obtain a declaratory decree where consequential relief is prayed for, within the meaning of see. 7, sub-sec. 4, cl. (c) of the Court Fees Act, 1870, and in support of this contention reference has been made to the case of Ganesh Bhagat v. Sarada Prasad Mookerjee (1). In our opinion this contention is not well-founded. The Plaintiffs do not seek to set aside the decree nor do they seek to obtain declaratory decree with consequential relief. Their contention is that although the decree was validly made, the circumstances which led up to the sale held at the instance of the decree-holders could not in law pass their title to the execution purchaser; and on this basis, they seek to recover possession of the property. No doubt they seek a declaration that the personal decree could not have been made against them. This declaration, however, can be consequential on the success of their substantial claim in the suit. Their contention is that a personal decree can be made under Or. 34, r. 6 of the Code only if there has been a valid and operative sale which has led to a partial satisfaction of the amount due under the mortgage decree. We hold accordingly that the suit was properly valued and that the plaint was adequately stamped. We desire to point out that even if the view taken by the Subordinate Judge had been well-founded the course pursued by him was contrary to the provisions of Or. 7, r. 11, C.P.C The provisions of this rule are mandatory, and they require that where a plaint is written upon paper insufficiently stamped, the Court is bound to give the Plaintiff time to make good the deficiency; Achut Ramchandra v. Nagappa (2) and Ram Sahay v. Kumar Luchmi Narayan (3). The fact that the objection is heard at a time subsequent to the registration of the suit is immaterial, because the provisions of this rule can be brought into operation at any stage of the suit, Kishore Singh v. Subdol Singh (4), Venkata Tawker v. Ramaswami (5), Brahmamoyi Dasi v. Audisi (6) and Padmanund Singh v. Ananta Lal (7). In this view it follows that as soon as the Subordinate Judge held that the plaint was not adequately stamped, he should have proceeded to have acted in accordance with the provisions of Or. 7, r. 11: upon the failure of the Plaintiff to carry out his order he should have rejected the plaint and not dismiss the suit. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remitted 1o him for trial on the merits. In view of the grave allegations made in the plaint we direct that the facts be first investigated on the evidence before the questions of law be considered. Costs will abide the result. We direct that under sec. 13 of the Court Fees Act, the court-fee paid on the memorandum of appeal be returned to the Appellants.
S.C.C