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1929 Supreme(SC) 27
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW, LORD TOMLIN, AND SIR LANCELOT SANDERSON.
FAIZULLAH KHAN - Appellant
Versus
MAULADAD KHAN (DEFENDANTS) - Respondents
On Appeal from the Court of the Judicial Commissioner, North-West Frontier Province.
Decided On : March 15. 1929.
Solicitors for appellants :Stanley Johnson & Allen. Solicitors for first respondent: T. L. Wilson & Co.
Valuation of an appeal based on the decree against the appellant covers the entire relief sought. Any deficiency in court fees can be rectified under Section 149 of the Code of Civil Procedure, which validates the document retrospectively from the date of presentation, preventing it from being time-barred.
Headnote:(A) Court Fees Act, 1870 - Section 7(iv)(f) - Valuation of appeal for accounts - Where an appeal is valued based on the amount of the decree passed against the appellants, such valuation covers the appeal in its entirety, including the prayer for a decree in favor of the appellants.
(B) Code of Civil Procedure, 1908 - Section 149 - Deficient court fees - The court possesses the discretion to allow a party to pay the remaining court fee at any stage of the proceedings. Upon such payment, the document is deemed to have the same force and effect as if the fee had been paid in the first instance.
(C) Limitation - Effect of deficient court fees - A memorandum of appeal is not a nullity merely because of insufficient court fees. If the deficiency is rectified under Section 149 of the Code of Civil Procedure, the document stands validated from its original date of presentation and is not barred by limitation.
Facts of the case:
In a suit for rendering of accounts following the dissolution of a partnership, a final decree was passed awarding a specific sum to the defendant and nothing to the plaintiffs. The plaintiffs appealed, valuing the appeal at the amount of the decree against them, seeking both the reversal of said decree and a decree in their own favor. The appellate court held that the court fee paid only covered the reversal of the decree against them, and since the time for appealing the other relief had expired, that part of the appeal was barred by limitation.
Findings of Court:
The court held that the payment of the court fee based on the decree against the appellants covered the appeal as a whole. It further held that any deficiency in court fees could be rectified through the court's discretion, and such payment validates the appeal from the date of its initial presentation.
Issues: Whether the court fee paid on the value of the decree against the appellants covered the entire relief sought in the appeal, and whether a deficiency in court fees renders an appeal a nullity or time-barred.
Ratio Decidendi: The valuation of an appeal based on the decree against the appellant is treated as a valuation of the appeal in its entirety. Under Section 149 of the Code of Civil Procedure, the court has the discretion to allow the payment of deficient fees at any stage, and such payment ensures the document is effective from the date of filing, thus overcoming any limitation bar.
Result: Appeal allowed.
Legal Category Hierarchy
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practice and procedure
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court fees
- valuation
- deficiency
- limitation
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court fees
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civil law
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partnership
- dissolution and accounts
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partnership
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
