ORDER
A.H. Khan, J.
1. The trial court passed a preliminary decree for redemption in favour of plaintiff-mortgagor, specifying the amount to be paid to the mortgagee, and, also the time within which such payment was to be made. The petitioner paid the amount so specified, but not within the specified time, though it was paid before a final decree debarring the mortgagor from his right to redeem was passed. The mortgagee-defendant also moved the court that because the plaintiff-mortgagor had not paid money within the time specified by Court, therefore, a decree for foreclosure be passed in his favour. The trial Count (Civil Judge First Class, Gwalior) by his order dated 18-4-1959, passed a decree for foreclosure. Against this, the plaintiff-mortgagor filed an appeal before the District Judge, Gwalior, on a court-fees of Rs. 20/-. The office of the District Judge raised an objection that the memorandum of appeal was insufficiently stamped. The District Judge on 4-5-1959, passed an order that the appellant should either pay full court-fees or show cause how the court-fee was sufficient and 8-5-1959 was fixed for the purpose. On 8-5-1959, the District Judge after hearing the arguments of the plaintiff-appellant ordered that the decision regarding court-fees shall be made after hearing the opposite party as well. Eventually arguments of both the parties on the question of court-fees were heard, and, on 24-12-1960 the District Judge rejected the memo of appeal as being insufficiently stamped and as not being validly presented. Before the rejection of the memorandum of appeal the appellant had filed an application under Section 149, C. P. C. for making up the deficiency of court-fees, which was also disallowed. It is against this order that the plaintiff-mortgagor has filed this revision.
2. A preliminary objection raised by the learned counsel for the non-petitioner is that the order of the District Judge, rejecting the memorandum of appeal is a decree land therefore the petitioner should have filed an appeal in this court. But a decree, as defined in Section 2(2) of the Civil Procedure Code, is the formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It is obvious that the rejection of appeal on the ground of insufficiency of court-fees does not determine the rights of the parties in respect of controversy in the suit. The question of court-fees is a question between the State and the parties and not between the parties themselves, though it is open to the party to take objection to it. In support Mr. Mungre learned counsel for the petitioner has referred me to AIR 1938 Nag 122, Balaji Dhumnaji v. Mt. Mukta Bai, a Full Bench decision in which it is held that an order rejecting the memorandum of appeal because it is insufficiently stamped is not appealable. In this view of the matter the preliminary objection is disallowed.
3. The question now to be considered is whether the appeal of the plaintiff-mortgagor before the District Judge; was on insufficient court-fees.
4. The learned counsel for the petitioner urges that because there was no dispute as to the amount of money to be deposited in the court and that as a matter of fact amount specified by the court had already been deposited, the only question for consideration was this, when money has been deposited by the mortgagor before a final decree debarring him from the right to redeem is passed, can the court in view of the provisions of Order 34, Rule 8, Civil Procedure Code, overlook that fact and pass a decree for foreclosure in favour of the mortgagee.
5. Before deciding the question as to what court-fees the petitioner should have paid in the first appellate court, I should like to refer briefly to the trend of decisions in Nagpur on the point. In Dadnoo v. Somnath, 7 Nag LR 41, a Division Bench of the Judicial Commissioner's court held that an lappeal against a decree absolute for redemption, foreclosure, or sale on the ground that the mortgagor should not have been allowed further time to pay the mortgage-debt, requires Rs. 10/-stamp under Clause 4, Article 17 of Schedule II of the Court-fees Act. This point came up for consideration before a Full Bench of the Nagpur High Court, in Singai Raghubar Prasad v. Chhogmal, AIR 1931 Nag 1 (FB), and the view taken if 7 Nag LR 41, was overruled. Seven years aflter this, the question again was the subject of consideration before a Full Bench, AIR 1938 Nag 409, Sitabai v. Ramchandra Raghunath. The learned Judges of the Nagpur High Court considered the question whether the decision in 7 Nag LR 41, is to be approved or the view taken in AIR 1931 Nag 1 (FB), was to be followed. This Full Bench consisted of Stone, C. J., Grill and Vivian Bose, JJ. and they approved of the view taken in 7 Nag LR 41. I find myself in respectful accord with the view taken in AIR 1938 Nag 409 (FB). My reason is this that where the mortgage-debt has been deposited in the court and where the amount of debt is not in dispute, and, where only a subsidiary or ancillary question is to be considered; in such cases to ask the party to pay the court-fees in respect of the amount which is not in dispute, would make the litigation unnecessarily burdensome. The ratio decidendi of the Full Bench case, AIR 1938 Nag 409, is that where the relief claimed is not capable of valuation, ad valorem court-fee is not to be insisted upon.
6. In the present case, there is no dispute between the parties with respect to the mortgage-debt. It is also admitted that the amount due on the mortgage has been already deposited in the Court. The only question is whether in the circumstances, the court is justified in acting in flagrant violation of the provisions of Order 34, Rule 8, C: P. C.
7. In a case reported in 1960 Jab LJ 375, Bherodan v. Murlidihar, where the dispute was not about mortgage-debt but related to a subsidiary matter, this court took the view that ad valorem court-fee was not necessary.
8. For reasons stated above, I am of the opinion that the appeal filed by the plaintiff-mortgagor before the District Judge was not on insufficient court-fee, because the amount on which the court-fee was demanded had already been deposited in the Court, and, there was no dispute about it. In this view of the matter, the question of granting time under Section 149, C. P. C. does not arise and need not be considered.
9. The revision is allowed and setting asidethe order, rejecting the memorandum of appeal ofthe learned District Judge the case is sent back tothe first appellate court for deciding the appeal onmerits.