Full Judgment
King, J.
1. This is a reference under Section 5, Court-fees Act, 1870.
2. The plaintiff claimed Rs. 9,562-9-3 as principal and interest on account of profits due at the date of suit, together with pendente lite and future interest at 12% per annum. The suit was decreed for Rs. 5,304-15-4, which included interest at 12% up to the date of suit. No pen-dente lite interest was decreed, but future interest was decreed at the rate of 5% per annum.
3. The plaintiff appealed, claiming a further sum of Rs. 2,541-10-3. He also claimed pendente lite interest and made this the subject-matter of one of his grounds of appeal.
4. He paid a court-fee on Rs. 2,541-10-3. The question is whether he should not pay a further court-fee on the sum claimed as pendents, lite interest, which by calculation comes, to Rs. 663.
5. Under Article 1, Schedule 1, the memorandum of appeal must be stamped ad valorem on 'the amount of value of the subject-matter in dispute.' When the appellant has expressly claimed a definitely ascertainable sum by way of pendente lite interest, which was disallowed by the trial Court, I think that sum must be held to be part of the amount or value of the subject-matter in dispute.' Otherwise, if the appeal had related to the pendente lite interest only, we should be forced to hold that there was no 'subject-matter in dispute' in the appellate Court, and such a conclusion seems absurd.
6. No clear rulings on this point have been brought to my notice. The Chief Inspector of Stamps relies upon Rowlins v. Lachmi Narain Jha [1918]3 Pat. L.J. 443, but that case has no direct bearing upon the point in dispute, as it deals only with the court-fees payable upon appeals or cross-examinations in redemption or foreclosure suits. This is a suit of a different nature.
7. The appellant's advocate relies upon Vithal Hari Athavle v. Govind Vasudeo Thosar [1893] 17 Bom. 41. In that case the plaintiff obtained a decree for a certain sum due upon a mortgage together with interest up to the date of suit. The plaintiff appealed on the grounds inter alia that he was entitled to interest up to the date of payment. The Court held that the appellant was not bound to pay an additional court-fee on account of the claim for interest from institution of the suit until payment. The reason was that the claim for interest stood on the same footing as a claim for future mesne profits which had been held not to fall under Section 7, Court-fees Act. This case was decided before the amendment of Article 1, Schedule 1, Court-fees Act by. Section 155, and Schedule 4, Civil P.C., 1908. The amend-merit makes it clear that Article 1, Schedule 1, is a substantive provision governing the court-fees payable upon memoranda of appeal. Section 7 applies to suits only and. not to appeals. For this reason I think the Bombay ruling can no longer be considered good law.
8. A Division Bench of this Court in Bhawani Prasad v. Kutubunnissa Bibi [1905] 27 All. 559 did not expressly dissent from the above mentioned Bombay ruling, which does not appear to have been brought to their notice, but they took a different view. In that case the trial Court, in a suit upon a mortgage, awarded interest' upto the date fixed for payment. The plaintiff appealed claiming future interest from the date fixed for payment until realization. The Court did not hold (as in the Bombay ruling) that no court-fee was payable upon the amount claimed as interest. They held that it-was impossible to determine the amount of future interest and therefore a fixed court-fee was payable under Schedule 2, Article 17 (vi).
9. This lends support to the view that I take, that when the sum claimed in appeal as interest is definitely ascertainable (as in the present case) then an ad valorem court-fee is payable under Schedule 1, Article 1, as the sum claimed is part of the 'subject-matter in dispute' in the appellate Court.
10. I may add that the appellant's advocate has also cited Kali Prasad Singh v. Mathura Singh A.I.R. 1923 Patna 28 and Sadhu Saran Rai v. Barhamadeo Lall A.I.R. 1927 Pat. 230, but they seem to be beside the point as they deal with cases where a plaintiff appeals against the total dismissal of a suit for money. In the present case the plaintiff's suit was partly decreed and the principles laid down in those rulings do not seem to be applicable.
11. I hold that the appellant is bound to pay an ad valorem court-fee on the ascertainable amount of pendente lite interest when he has expressly made it part of the subject-matter in dispute in the appeal.