Judgement

Consolidated Appeals (Nos. 19 and 20 of 1928) from an order of the Court of the Judicial Commissioner of the North-West Frontier Province (May 7, 1925) setting aside a decree of the Honorary Subordinate Judge of Dara Ismail Khan (March 24, 1924).

The decree of the Court of first instance was a final decree made on taking accounts of a partnership. By the order now appealed from the Court of the Judicial Commissioner set aside the decree and remanded the case for a fresh trial on the merits, but ordered that the present appellants should not have a decree in their favour even if anything were found to be due to them respectively from the first respondent on taking the accounts. The present appeals were limited to the latter part of the above order, which resulted from the learned Judicial Commissioners view that the memorandum of appeal filed by the present appellants was insufficiently stamped to entitle them to more than a reversal of the decree against them, and that as the time for appealing had then expired the appeals were barred by limitation so far as they claimed further relief.

1929. Feb. 25. De Gruyther K.C. and Parikh for the appellants. The Court Fees Act, 1870, s. 7 (iv.)

(f) contains the provision applicable. The fees paid were sufficient under that provision to entitle the plaintiffs to the full relief they sought. The suit being for an account, by s. 11 fees in respect of any sum by which the amount found due exceeded the valuation could, be paid before execution. But even if the fees paid were inadequate, the Court had a discretion under s. 149 of the Code of Civil Procedure to allow at any stage such further payment as was right. That discretion should have been exercised. There was no ground for holding that any of the relief sought was barred by limitation.

Schiller K.C. and W. Wallach for the first respondent. So far as the plaintiff sought to set aside the decree against him the value of the relief sought was correct. It follows that in respect of the further relief he sought—namely, a decree in his favour—there was no valuation at all. To that extent, therefore, the memorandum did not comply with s. 4, and was a nullity. Both s. 11 of the Act and s. 149 of the Code apply only where there is an insufficient valuation, not where there is no valuation. But even if s. 149 applies, the Court must be taken to have exercised its discretion thereunder, and this being a matter of procedure the Board will not interfere.

March 15. The judgment of their Lordships was delivered by

LORD SHAW. This is a consolidated appeal from an order dated May 7, 1925, in the Court of the Judicial Commissioner of the North-West Frontier Province, Peshawar, which set aside a decree of the Honorary Subordinate Judge of Dera Ismail Khan dated March 24, 1924.

Stated generally, the case between the parties had reference to the rendering of accounts and the settlement of the sums due thereon in connection with a partnership of a firm of contractors for supply and transport and military works. The partnership is now dissolved.

In the suit, brought on March 29, 1923, Faizullah Khan and Sherdad Khan, plaintiffs and appellants, valued their suit at Rs. 3000 for the purpose of Court fees, and asked for a rendering of accounts and a decree for Rs. 3000 with the statement " if more than Rs. 3000 be found due to the plaintiffs they will pay an additional Court fee." In his pleas Mauladad Khan, the first defendant, asked for a decree in his own favour for Rs. 29,000, and he challenged the shares as given by the plaintiffs and asked for dismissal of their suit.

As stated in the appellants case The suit was tried by the Honorary Subordinate Judge, First Class, Dera Ismail Khan, who on October 22, 1923, passed a preliminary decree determining the respective shares of the parties in the partnership, and ordering accounts to be taken according to the directions given by him. There was no appeal against this decree, which has therefore become