S.52 of Court Fees Act deals with the fee payable in an appeal. It applies both to first appeal and second appeal. S.52 provides that fee payable in an appeal shall be the same fee that would be payable in the court of first instance on the subject matter of the appeal. Explanation (1) provides that whether the appeal is against the refusal to grant a relief or against the grant of the relief, fee payable in the appeal shall be the same as fee that would be payable on the relief in the court of first instance. Explanation (3) provides that in claims, which include interest subsequent to the institution of the suit, interest accrued during the pendency of the suit till the date of the decree shall be deemed to be part of the subject matter of the appeal except where such interest is relinquished. The appellant in this case while filing the appeal paid court fee on the amount decreed by the Trial Court calculating interest till the date of the decree of the trial court namely, 28.2004. The Registry objected stating that interest is to be calculated till the date of the decree of the first appellate court namely 28.2007.

2. Learned counsel appearing for appellants was heard.

3. Theargument of the learned counsel is that under S.52, the fee payable in an appeal is the fee that would be payable in the suit before the trial court and under Explanation (1) also the fee payable is one that is payable on the relief in the court of first instance and even under Explanation (3) fee payable is inclusive of the interest which accrued till the date of he decree of the trial court. Learned counsel pointed out that Full Bench of this court in George Vs. Bank of India (1992 (2) KLT 498) clarified that in an appeal, fee is to be paid for pendente-lite interest which accrued from the date of the plaint till date of the decree and because of Explanation (3) it is the interest till the date of the decree of the trial court.

4. A learnedsingle Judge of this court in Veebros Freight Carriers Vs. Eshita Agency (2004 (2) KLT 666) interpreting Explanation (3) of S.52 held that liability of the appellant is to pay fee on the amount inclusive of portion of the interest accrued as it forms subject matter of the second appeal. The argument of the learned counsel is that when the main section provides for payment of fee that is payable on the court of first instance and it is further reiterated in Explanation (3) fee is to be paid on the interest portion till the date of the decree of the trial court, court fee paid is correct and no fee is payable on the interest till the date of the decree of the first appellate court. I cannot agree with the submission.

5. S.52 provides that fee payable on 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. Explanation (1) only clarifies that the said fee is payable whether the relief was granted or refused. Explanation (3) further clarifies that in case the decree granted includes payment of interest subsequent to the institution of the suit, the fee is payable inclusive of the interest so accrued. The Explanation restricts the liability to pay fee on the interest till the date of the decree except where such interest is relinquished. If argument of the learned counsel appearing for appellants is to be accepted, appellants need pay fee in an appeal on the interest accrued till the date of the decree of the trial court alone. But by reading Explanation (3), I cannot agree with the submission of the learned counsel. The decree contemplated under Explanation (3) is the impugned decree in the appeal. When the decree challenged in the second appeal is the decree of the first appellate court the decree contemplated could only be that of the first appellate court. If so fee payable is on interest accrued from the date of institution of the suit till the date of the decree of the first appellate court. The position has been clarified by the