Edge, C.J, Straight and Tyrell, JJ.:— This was a suit for redemption of mortgage. The mortgagor had assigned. The mortgagee and the assignee were the defendants. The Munsif decided that the fee payable on the plaint was insufficient, being of opinion that the relief sought by the plaintiff must include a further relief against the assignee by a declaration that the assignment was bad. The Munsif consequently held that the relief sought in the plaint was undervalued. He dismissed the suit without entering into the merits, on the ground that the plaintiff did not then and there make good the fee which he, the Munsif, had determined to be payable. The plaintiff appealed, and on appeal the Subordinate Judge, holding that the fee paid by the plaintiff was more than sufficient and that no canclment of the deed of assignment was sought, allowed the appeal and remanded the case for trial on the merits. From that order this appeal has been brought if the relief sought was, in fact, under-valued, it was the duty of the Munsif to reject the plaint. He, in fact, recorded evidence, and having recorded evidence he dismissed the suit without expressing any opinion on that evidence. It is obvious that if he was right as to the fee, the only proceeding open to him was to reject the plaint under s. 54 of the Code of Civil Procedure on failure of the plaintiff within a reasonable time to make good the deficiency. We are not prepared to hold that s. 158 was applicable to a case of this kind, when there is a plain direction in s. 54 as to the course a Court must adopt. We must regard the Munsif's disposal of the suit as being under s. 54. If that be a correct view, his order rejecting the plaint was a decree under s. 2 of the Code. An order rejecting a plaint is in terms included in the definition in s. 2, and being a decree was appealable when there was no statutory prohibition to the contrary. The next question is, is there such statutory prohibition? On behalf of the appellants, s. 12 of the Court-fees Act is said to be a direct prohibition against an appeal in this matter. If that argument is to be accepted, there would be no appeal when a Judge of first instance wrongly decided that a suit was under-valued, and on that decision rejected the plaint. In our opinion the intention of the framers of the Code of Civil Procedure was that there should be an appeal in every case failing within s. 54; otherwise we should have found in the definition of decrees in s. 2 words limiting those orders under s. 54 which night, for the purpose of the Code, be considered decrees. A similar view was taken in the case of Ajoodhya Pershad v. Gunga Pershad . We are of opinion that the decree of the Munsif should be regarded as passed in rejection of the plaint and was appealable. Several cases have been referred to. In Annamalm Chetti v. Cloete the learned Judges endeavoured to reconcile s. 54 of the Code of Civil Procedure with s. 12 of the Court-fees Act. We do not think it necessary to consider whether those sections can or cannot be reconciled, as we are of opinion that an appeal lies under the Code of Civil Procedure of 1882. If we had to consider whether those sections could be reconciled or not, on the lines on which those Judges proceeded, we should have a great difficulty in coming to the conclusion that a Court could determine the amount without deciding the question as to the relief sought, and yet that the relief sought was not a question relating to the valuation for the determination of the fee chargeable. The Subordinate Judge may have been wrong in remanding the case under s. 562, as the evidence had been recorded. The Subordinate Judge ought to have treated the decree of the Munsif as an order rejecting the plaint. The Munsif should have been told to accept the plaint as properly stamped and to proceed to dispose of the case on the merits. To that extent we allow the appeal and direct the Munsif to restore the suit to its place in the list of pending cases on the basis of its being a suit in which a proper court-fee has been paid, and dispose of it according to law. Costs here and hitherto to abide the result.
Cause remanded.