A judgment is a final judgment if it decides the amount due by the defendant to the plaintiff and directs that a decree will be passed on payment of the deficit court-fee.

CHANDRA SEKHARA SASTRY, J.

( 1 ) THIS Revision Petition and the Civil Miscellaneous Appeal are filed by the plaintiff in O. S. 108/56 on the file of the Subordinate Judge s Court, Vijayawada under the following circumstances.

( 2 ) THE plaintiff in the suit in Kamala Mining Corporation a mercantile firm doing mining business at Vijayawada represented by his managing partner Yarlagadda Venkateswarlu. The 1st defendant is Doulatram Rameshwaralal, also a mercantile firm. The 2nd defendant was added as a party in the year, 1957 as he claimed to have become a partner of the plaintiff firm. The suit itself was for an account of agency pertaining to the sale of the plaintiff s 9,000 and odd tons of iron ore and for a decree on settlement of accounts for the amount found due. There was a preliminary decree on 20/12/1956. Then the accounts were gone into and the matter came up again before the Subordinate Judge s Court, Vijayawada and a judgment was given on 28th day of February, 1963 wherein the Court considered what was the amount due to the plaintiff from the 1st, defendant The following paragraphs i. e. . paragraphs 37 and 38 of the said judgment may be quoted as the main argument in the case related to the scope of this judgment viz. , whether this judgment is a final judgment or is only an interlocutory judgment to be followed up by a final order directing the passing of a decree on payment of court-fee. "37. A copy of the balance sheet or statement of account prepared by the Commissioner is appended in the annexure. It gives Rs. 1,42,733-4-2 as the amount due to the plaintff from the 1st, defendant. The four items which were disallowed are not included in the same. It was found under issue 10 that the 1st, defendant is entitled to get commission at 10 per cent on the gross sales. The amounts realised by sales are Rs. 37,500 and Rs. 4,01,266-8-5. Ten per cent commission thereon conies to Rs. 42,876-65. Deduction has to be made to that extent and consequently the amount due by the 1st, defendant to the plaintiff is RE. 98,856-50, As found under issues 1 and 2 the 1st, defendant is liable to pay interest thereon at 6 per cent p. a. from 16-10-1956. 38 In the result, decree will be passed with costs in favour of the plaintiff firm against the 1st defendant for Rs. 98,856-50 along with interest thereon at 6 per cent p. a. from 16-10-56 As the relief was valued only at Rs. 11,000 and court-fee paid thereon the decree shall be passed on payment of the deficit court-fee as laid down under Section 32 (2) of the Andhra Court Fees Act. Call on 7-3-63 for payment of deficit court-fee. "

( 3 ) AFTER passing of this judgment complications seem to have arisen. Petitions were being filed by different parties for various reliefs. But, the plaintiff who was found entitled to more than Rs. 98,000 from the 1st, defendant by this judgment did not pay the deficit court-fee as per the direction in paragraph 38 of the judgment. Instead, I. A. 2284/63 was filed by the 2nd. defendant under Section 151 and Section 47 (2) C. P. C. praying to direct the 1st, defendant to pay the required court-fee on the amount found due by the judgment dated 28th. February, 1963. That application was dismissed by the Subordinate Judge, Vijayawada. Plaintiff filed CMA. 366/64 against the order dismissing the said application. The 2nd defendant himself did not seek to revise that order. An objection is taken on behalf of the respondent s counsel before me that the CMA would not lie. When I asked Mr. K. Narasimham as to why he filed the CMA. , he answered that the CMA had to be filed by the plaintiff for the reason that there are certain observations in that order appealed against to the effect that the judgment dated 28-2-1963 is not a final judgment to be followed up by the final decree and that the Subordinate Judge held that a final decree would be passed only after payment of the deficit court-fee on the Court passing a further order to pass a final decree under Section 3

Click Here to Read the rest of this document