JUDGMENT

N.R. Chatterjea, J. - The question in this case relates to the Court-fee payable on a memorandum of cross-objections against an order, disallowing costs to the respondents, in the decree of the Court below. The suit was upon a mortgage and the respondents were added as parties to the suit as second mortgagees. They pleaded that with regard to a portion of the claim, they held the position of first mortgagees. The Court decided the question in their favour but did not allow them costs. The plaintiffs have appealed to this Court, and the respondents have preferred cross-objection on the ground that the Court below is wrong in not allowing them costs. They paid a Court fee of two rupees On the memorandum of cross-objections. The Stamp Reporter was of opinion that ad valorem Court-fee is payable under Schedule I, Article 1 of the Court Fees Act, because Schedule V of the CPC has repealed Section 16 of the Court Fees Act. The Vakil for the respondent having refused to accept the correctness of the note, the matter came up before the Registrar, and he as the Taxing Officer of the Court referred the matter to the Chief Justice u/s 5 of the Court Fees Act, as the matter is of general importance, and I have been appointed by the Chief Justice to decide the question.

2. As the question relates to Court-fees, I directed notice to be given to the Senior Government Pleader and he appeared and argued the case on behalf of the Government.

3. Schedule I, Article 1, of the Court Fees Act lays down the scale of ad valorem fees payable on a memorandum of appeal (not otherwise provided for in the Act) or of cross-objection upon the "amount or value of the subject-matter in dispute," and the question is whether the costs which have been disallowed by the Court below and which are claimed by the respondents in the memorandum of cross-objections, are the "subject-matter in dispute." The learned Pleader for the respondents relies upon the case of Doorga Dass Chowdry v. Ramanauth Chowdry 8 M.I.A. 262 : 1 Sar. P.C.J. 772 : 19 E.R. 530. In that case the question was whether costs of suit could be added in calculating the appealable value of Rs. 10,000 to the Privy Council, and the Judicial Committee held that "the costs of a suit are not part of the subjeat-matter in dispute." [See also Nilmadhub Dost v. Bishumber Doss 13 M.I.A. 85 : 12 W.R.P.C. 129 : 3 B.L.R.P.C. 27 : 2 Suth. P.C.J. 257 : 2 Sar. P.C. J. 9 : 20 E.R. 494] It is true, as pointed out by the learned Senior Government Pleader, that their .Lordships were construing the terms of the order in Council, dated the 10th April 1838, but it is clear that in their Lordships' opinion costs of suit are not the "subject-matter in dispute" in a suit. The very same words, tie,, "the subject-matter in dispute" are used in Article 1, Schedule I of the Court Fees Act.

4. The question does appear to have been considered in any case in this Court. In the Madras Court, a reference was made on the point by the Taxing Officer [see Makki, In re 19 M. 350 : 6 Ind. Dec. (N.O.) 950], and the Court gave its decision as follows:--"The appellant has made the costs the subject-matter of dispute, and, therefore, a Court fee stamp is leviable." In the case for decision stated by the Registrar of the Madras High Court reference was made to the two decisions of the Judicial Committee in Doorga Dass Chowdry v. Ramanauth Dass Chowdry 8 M.I.A. 262 : 1 Sar. P.C.J. 772 : 19 E.R. 530 and Nilmadhub Doss v. Bishumber Dost 13 M.I.A. 85 : 12 W.R.P.C. 129 : 3 B.L.R.P.C. 27 : 2 Suth. P.C.J. 257 : 2 Sar. P.C. J. 9 : 20 E.R. 494, and also to a proceeding of the Madras High Court (on a reference by a District Court) in which the Court, while pointing out that its answer was not authoritative, expressed the opinion that no fee was leviable u/s 16 of the Court Fees Act on an objection (under Section 561 of the Code) which had reference only to so mush of the lower Court's decree as disallowed costs, and quoted the dictum of the Privy Cou