ORDER
Panigrahi, J.
1. This revision petition is directed against an order of the Subordinate Judge, Berhampur, calling upon the plaintiff to pay additional court-fee, amounting to Rs. 1864-1-0, and making it a condition precedent to the passing of a final decree.
2. The plaintiff sued the defendant on the allegation that she had purchased the suit properties in the name of the defendant who is related to her, and that she was in possession in her own right as the purchaser of the equity of redemption. She made a further allegation that the defendant refused to execute a proper conveyance transferring the title to the plaintiff. The prayer in the suit was, therefore, for a direction to the defendant to execute a proper conveyance and also for an injunction restraining the defendant from interfering with her possession. The relief for execution of the deed of conveyance and the one for injunction were respectively valued at Rs. 1000/- and Rs. 1300/-. The plaintiff however claimed an alternative relief in respect of the same properties which had been mortgaged to her and subject to which the equity of redemption had been purchased by the defendant. This alternative relief was valued, at Rs. 50,000/- and court-fee was paid on this amount.
3. Issue No. 15 raised in the suit was: 'Is the court-fee paid for reliefs 1 & 2 correct'. In discussing this issue, the learned Subordinate Judge held, in para. 21 of his judgment, that the main relief that the plaintiff prayed for was for a declaration of her title without which she would not be entitled to the relief of injunction. He therefore directed the plaintiff to pay court-fee on the value of the declaration of her title which he fixed at Rs. 30,000/- being the present value of the suit property. The preliminary decree that was drawn up directs that
'the court-fee payable on the reliefs other than the mortgage shall not form part of the suit costs. The plaintiff must first pay the deficit court-fee of Rs. 1864/1/0 on the sum of Rs. 30,000/- before she can apply for a final decree.'
It is against this order that the present revision is directed.
4. It is first contended on behalf of the petitioner that the order of the lower court directing the plaintiff to pay deficit court-fee before she can apply for a final decree does not amount to a 'decree' as defined in Civil P. C., as it does not finally adjudicate any , dispute between parties. Any question relating to court-fee is essentially a matter between the plaintiff and the State. The Subordinate Judge's direction, it is contended, is therefore, an order against the plaintiff and does not amount to a decree passed in the suit as such. Furthermore, it does not, in terms, purport to be a 'decree'. On the other hand, it postpones the passing of a, decree and is contingent upon payment of additional court-fee as directed.
A decree is said to be a preliminary decree when further proceedings have to be taken before the suit can be finally and completely disposed of. A decree can be said to be final only when such adjudication completely disposes of the suit. The Order directing the payment of court-fee does not either dispose of the suit, or direct any further proceeding to be taken towards the disposal of the suit. It cannot therefore be regarded as a decree as defined in the Code; it can at best be regarded only as an interlocutory order attracting the revisional jurisdiction of this Court.
5. In -- 'Manilal v. Durga Prasad', 3 Pat 930 a Division Bench of the Patna High Court held that a similar order on an issue as to court-fee is not a 'decree'. That was a case where the issue as to the payment of court-fee was tried as a preliminary issue and did not put an end to the suit itself. But I see no distinction, on principle, between an order passed earlier in the suit and one passed later directing the party to pay court-fee before a decree could be passed in his favour. If the order is passed as a preliminary issue then it means that the Court refused to try the suit; if it is passed later, then it means that the Court refused to pass a decree. In either case, it is in the nature of an order for payment of court-fee and does not amount to a decision of the controversy between the parties. I would therefore, hold that the revisional jurisdiction of the Court can be invoked.
6. The next question is whether the learned Subordinate Judge was right in holding that the plaintiff is bound to pay 'ad valorem' court-fee on his prayer for an injunction. The lower Court appears to have applied Section 17, Court-fees Act in taking the view that a separate court-fee is payable on each of the reliefs claimed. That Section reads as follows:
'Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects, would be liable under this Act.'
This Section has been the subject-matter of acute difference of opinion among High Courts In India as well as among Judges of the same High Court. The difficulty arises in correctly interpreting the word 'subjects' used in the Section. That word has not been defined anywhere, and the reported decisions would indicate that the word is not capable of any precise definition. But the prevailing view appears to be that the word is synonymous with another similarly dubious expression 'cause of action' which has also been the subject-matter of judicial interpretation in several cases.
In -- 'In re: Parameswar Pattar', 54 Mad 1, a Full Bench of the Madras High Court held, following a Full Bench decision of the Calcutta High Court in -- 'Kishori Lal Roy v. Sharat Chunder', 8 Cal 593, that a claim for possession of land and for mesne profits cannot refer to two distinct subjects under Section 17, Court-fee Act. In -- 'Nouratanlal v. Wilford, Joseph Stevenson', 4 Pat L J 195, the Patna High Court attempted a definition of the word subjects' occurring in the Court-fees Act and said that two views are possible as to the meaning of that word. One is that the word 'subject' relates back to Section 7 where the various subjects of suit are put under different heads. The other view is that the word means cause of action But even on this hypothesis the matter is not altogether free from doubt as the expression 'cause of action' is nowhere defined; and it would be a futile attempt to remove one obscurity with the help of another. It is not difficult to visualise cases where different causes of action may arise in respect of different subjects. In all such cases, the Court is bound to look to the essential relief that the litigant claims in his suit and if more than one subject forms the subject-matter of the controversy, the operation of Section 17 may be attracted.
To remove any such uncertainty local amendments of this Section have been introduced by the State Legislatures. See, for instance, Bengal Act 7 of 1935 which expressly lays down, in the amended Section 17(2), that where more reliefs than one, based on the same cause of action, are sought either jointly or in the alternative, the fee shall be paid according to the value of the relief in respect of which the largest fee is payable. Similar provisions have been introduced by the Central Provinces & Berar Act 9 of 1941 and the United Provinces Act 19 of 1938 The view taken by the Legislatures of these States appears to me to correctly represent the spirit of Section 17, Court-fees Act and it is time that the Orissa State Legislature also sets the matter at rest by introducing a suitable amendment. This is consistent with the view taken by Roe J. in -- 'Mukhlal Gir v. Ramdheyan, Rai', 44 Ind Gas 143 (Pat), where it was held that where alternative reliefs were sought, court-fee must be paid on the relief which appears to be of the highest value and that Section 17 applies to cases where different reliefs are simultaneously asked for by the plaintiff.
A later Division Bench of the same Court held in -- 'Dasarath v. Joychand', AIR 1925 Pat 193, that it is the settled law that where the plaintiff sues in the alternative for one off two reliefs, the larger of the two reliefs sought for determines the amount of stamp, and the earlier case reported in '44 Ind Gas 143' was relied on. This appears to have been the practice of the Patna High Court as pointed out by the Registrar in the reported case.
7. The learned Government Advocate has drawn my attention to a later case reported in -- 'Tunnilal v. Shankerlal', 28 Pat 299, where their Lordships of the Patna High Court held that distinct causes of action cannot form one subject, and pointed out that the word subject' occurring in Section 17, Court-fees Act need not always be read as synonymous with 'cause of action.' On a review of the decisions placed before me, it appears to me that, in the ultimate analysis, whether the word 'subject' is equivalent to 'cause of action' must depend upon the facts and circumstances of each individual case. Applying this principle to the facts of the present case, it is to be seen what the subject-matter of controversy between the parties is The plaintiff wants her absolute title to the equity of redemption declared or, in the alternative, her right to bring it to sale.
In a mortgage suit the plaintiff gets a decree for sale of the mortgage properties and brings the equity of redemption to sale. The plaintiff therefore prays for a determination of the question whether, in the circumstances alleged by her, she has already purchased the equity of redemption or whether she has to bring it to sale in order to complete her title. The subject is therefore one and the same, namely, the right of ownership of the equity of redemption. The cause of action is the denial by the defendant of her (plaintiff's) absolute title to the properties and the alternative cause of action is the right to enforce the mortgage. I have, therefore, come to the conclusion that the plaint does not disclose a prayer for simultaneous reliefs or cumulative reliefs and that the subject comprised in the controversy between the parties is identical.
8. In my opinion, therefore, the plaintiff is not liable to pay court-fee separately on the two reliefs and the fee already paid on the higher relief is sufficient. I would, accordingly set aside the order of the Subordinate Judge calling upon the plaintiff to pay additional court-fee and direct that a final decree be passed as prayed for by her.
9. This revision is therefore allowed, but there will be no order as to costs.