The Court-fee payable on cross-objections is the same as the fee that would be payable on the relief in the Court of first instance.

( 1 ) THIS appeal is against an order of our learned brother Narasimham, J. , holding that the proper Court-fee to be paid on the cross-obections preferred by the apellant herein is Rs. 300.

( 2 ) THE appellant filled O. S. No. 19 of 1959 on the file of the sub-Court, Machilipatnam on foot of two mortgages executed in his favour. A preliminary mortgage decree in favour of the plaintiff for Rs. 20,897 was passed against items 1 to 3 of the plaint schedule. The trial court, however, directed that the plaintiff would proceed against items 1 and 2 of the plaint schedule in the first instance and if the amount is not realised by the sale of those properties, then only he will proceed against item 3. The mortgagors preferred A. S. No. 92 of 1963 to this Court against the decree granted in favour of the plaintiff. The plaintiff sought to prefer cross-objections questioning the direction of the Court below that items 1 and 2 should be proceeded against in the first instance and item 3 can be proceeded against only if the amount realised by the sale of items 1 and 2 is not sufficient to satisfy the decree. The cross-objector paid a Court-fee of Rs. 2 only on the cross-objection. An objection was raised by the office stating that the Court-fee should be paid under section 47 of the Court-fees act which relates to suits not otherwise provided for. Narasimham, J. , held that section 47 of the Act would apply and directed that a Court-fee of Rs. 200 has to be paid, as it was stated that the value of item 3 was Rs. 6,600. But subse quently it was pointed out that it was a mistake and the value was Rs. 66,000 and therefore, the order was modified by directing payment of a Court-fee of Rs. 300 under section 47 (z v) of the act.

( 3 ) THE plaintiff mortgagee has preferred the above appeal as against the said order. The maintainability of the appeal itself was questioned but a Bench of this Court by its order dated 31st March, 1966, held that the appeal was maintainable and directed the Letters Patent Appeal to be registered.

( 4 ) IT is argued on behalf of the appellant-firstly that no Court-fee at all is payable, and secondly, that even if Court-fee is payable, the proper Court-fee in Rs. 2.

( 5 ) THE first submission is based on the contention that section 6 proviso is applicable to the case. Section 6 deals with multifarious suits and in so far as it is relevant for the purpose, is as follows : "in any suit in which separate and distinct reliefs based on the same cause of action are sought, the plaint shall be chargeable with a fee on the aggregate value of the reliefs: provided that if a relief sought is only ancillary to the main relief, based on the mortgage and hence no separate court-fee has to be paid on this renel in this suit and for the same reason no separate Court-fee has to be paid in any appeal or cross-objections. "

( 6 ) UNDER section 49 of the Act, the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal. In Explanation (1) to the section, whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would bs payable on the relief in the Court of first instance.

( 7 ) IN view of the definition of appeal in section 3 (1) as including cross objections, section 49 is equally applicable to cross objections, as if it were an appeal. Thus, it is seen that the Court-fee on the cross objections in so far as it related to the refusal of the relief to proceed against all the properties irrespective of the order is concerned, the fee payable in the cross-objections would be the same as the fee that would be payable on the relief in the court of first instance. This, in our opinion would mean what the cross objector would have paid if he had claimed this relief in the Court of first instance. It is argued on behalf of the cross-objector that a