JUDGMENT - (1) This revisional application is against an order made by the Taxing Officer directing the petitioner to pay additional court-fee under the following circumstances:

(2) Opponent No. 2 instituted Special Suit No. 5 of 1957 in the Court of the Civil Judge, S. D., at Ahmednagar, to recover a n amount lent to the petitioner. The suit was for an amount of Rs. 13,205/- which included interest upto the date of suit at the rate of 9 per cent per annum. On 18th July 1960 the claim was decreed in a suit of Rs. 13,033-8-6 with future interest from this date of suit till realization at 4 per cent per annum on a sum of Rs. 10,120/-. The appellant-petitioner appealed to this Court and valued the appeal at Rs. 13,033-8-6 and paid court-fee on that amount. The office raised a dispute and the matter was thereafter referred to the Taxing Officer. The Taxing Officer held that interest on Rs. 10,120/- at the rate of 4 per cent per annum upto the date of decree would come to Rs. 1033-40 nP. He therefore held that the total subject-matter of appeal would be Rs. 14036-80 nP and directed the appealant to pay a sum of Rs. 70/- as additional court-fee. Under Sc. 5(2) of the Court-fees Act, as now amended by the Bombay State, a revisional application lies against the order of the Taxing Officer which is now placed before me for final hearing.

(3) It is contended by Mr. Pendse and I think rightly - that awarding of future interest pendente lite is within the discretion of the Court under section 34 of the Civil Procedure Code as much as costs and therefore as in the case of costs no court-fees is payable. The Court may or may not award it as it may or may not award costs. Admittedly no court-fee is required to be paid on the amount of costs which is determined before the appeal is filed, as amount of costs does not from part of the subject-matter of appeal (See Doorga Das v. Ramanath, 8 Moo Ind App 262 (PC). The question whether interest should be awarded or not would be open to review in appeal by the Court inasmuch as appeal is rehearing of the suit, without, I should think, a ground being taken regarding interest. It would also appear that the decree of costs and future interests must fall to the ground if the judgment of the trial court is reversed on the merits. 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. This view is supported by decisions in Mithu Lal v. Mt. Chameli, ILR 57 All 71: (AIR 1934 All 805) and Mt. Keolapati v. B. N. Varma, ILR (1937) 12 Luck 566: (AIR 1937 Oudh 3). This view also finds support from the observations of the Calcutta High Court in the case of Dwarka Nath v. Debendra Nath, ILR 33 Cal. 1232, where it was said in a slightly different context as follows:

"There is no analogy between interest awarded under Section 209 of the Code and mesne profits claimed and awarded under Ss. 211 and 212. Interest may be awarded under Section 209 as an "Inducement to prompt satisfaction of the decree and as a penalty for non-compliance with it. Such interest is no part of the claim or relief granted as in the case of the mesne profits."

(4) On behalf of the State following cases have been relied upon by Mr. Vaidya: Rahman v. Balchand, AIR 1937 Nag. 6; Balmakund v. Secretary of State, AIR 1941 All 295; Damodar Pershad v. Hardeo Prasad, ILR 52 All 1029: (AIR 1931 All 351); Jagannath Pd. V. Bhala Pd., ILR 23 Pat 905: (AIR 1945 Pat 145); Bhag Shah v. Labha Mal, AIR 1933 Lah 941 and Gobardhan Das v. Narendra Bahadur, AIR 1919 Oudh 305 (1). In all abese cases it was held that interest pendente lite should be included in the claim for appeal. All these cases arose out of appeals in mortgage suits where the preliminary decree directs interest to be paid on the mortgage amount from the date of suit till the date of the preliminary decree, which amount after calcula

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