The amount of pendente lite interest decreed is not to be included in the amount or value of the subject matter in dispute in appeal for the purposes of Art. 1 of Schedule I of the Act unless the appellant specifically challenges the correctness of the decree for the amount of interest pendente lite independently of the claim of set aside that decree.

Judgment

RAGHUBAR DAYAL J. : This appeal by special leave, raises the question whether the amount of interest decreed for the period subsequent to the institution of a suit comes within the expression amount or value of the subject matter in dispute in Art. 1 of Schedule I of the Bombay Court fees Act, 1959, hereinafter called the Act, for purposes of court-fee payable on the memorandum of appeal.

2. The plaintiff-respondent No. 1 instituted Special Suit No. 5 of 1957 in the Court of the Civil Judge (Senior Division) at Ahmednagar to recover Rs. 13,205/- on account of the principal lent to defendant No. 7, and interest up to the date of the suit at the rate of 9 per cent per annum. On July 18, 1960, his claim was decreed in a sum of Rs. 13,033-6-6 with future interest from the date of suit till realisation at 4 per cent per annum on a sum of Rs. 10, 120/-.

3. Defendant No. 7 appealed to the High Court against the decree. In the memorandum of appeal, defendant No. 7 valued the claim for purpose of jurisdiction and court-fee at Rs. 13,033/6/6 and his grounds Nos. 1 and 48 of appeal were as follows:

"1. That the lower Court erred in decreeing the plaintiff s suit.

48. That the decree is otherwise erroneous, unjust and illegal and therefore deserves to be set aside.

The remaining 46 grounds related to the merits of the plaintiffs claim and did not deal with the correctness of the trial Court awarding future pendente lite interest at the rate at which it was to be calculated.

4. The Taxing Officer was of opinion that the appeal was against the whole decree and that the amount of value of the subject matter in dispute for purposes of court-fee was Rs 14,036.80 nP as the amount of interest from the date of the suit till the date of the decree on Rs. 10,120/- came to Rs. 1,033.40 nP and it had been conceded by the counsel for the defendant-appellant that the subject matter of the appeal was the decree passed by the trial Court. He therefore directed the defendant-appellant to pay the deficit court-fee of Rs. 70/- on the memorandum of appeal and to amend the claim accordingly.

5. The defendant-appellant then filed a revision to the High Court under S. 5(2) of the Act. His objection was upheld by the learned Judge who expressed the view:

"The subject matter in appeal is the real matter in dispute between the parties and not something which must stand or fall with the decision on it. In other words, it must mean the right which is in dispute between the parties.

He accordingly set aside the order of the Taxing Officer and held that the amount of court-fee paid on the memorandum of appeal was the proper court-fee. The State of Maharashtra has filed this appeal by special leave against this order.

6. Mr. Gupte, for the appellant State, contends that the view expressed by the learned Judge is not correct and mainly relies on the construction put by Courts on the expression value or subject matter in dispute in the relevant provisions relating to the High Court s giving leave to appeal to the Privy Council.

7. In Gooroopersad Khoond v. Juggutchunder, 8 Moo Ind 166 (PC) the Judicial Committee said, in connection with the requirements of the directions in the Order in Council of April 10, 1838, with respect to the conditions for granting leave to appeal to the Privy Council, that leave to appeal was to be given in cases where the value of the matter in dispute in the appeal amounted to the specified sum of Rs. 10,000/- and that in determining such value, the amount of interest decreed up to the date of the decree be included to the amount of the principal.

8. Doorga Doss Chowdry v. Ramanauth Chowdry, 8 Moo Ind App 262 (PC) is an authority for the proposition that the costs of a suit are not part of the subject matter in dispute. Their Lordships of the Privy Council said:

".....if they were allowed to be added to the principal sum claimed, it would be in the power of every litigant, by swelling the costs, to bring any suit up to the appealable value