JUDGMENT :- This is a defendants appeal and is directed against a judgment and decree of the Subordinate Judge, Theog.

2. Briefly stated the respondents case was that on 26th Kartik 2012 a sum of Rs. 627/10/- was found due against the appellant on account of articles purchased by him, that on 16-1-1956 the appellant through his servant sent a lame mule to the respondent with the message that the mule should be appropriated by him in full satisfaction of his dues. The latter replied that the mule was not worth more than about Rs. 300/- and that the appellant should come and settle the price of the mule. No settlement could be arrived at between the parties regarding the value of the mule. The respondent through a man of his sent the mule to the appellant who refused to accept the same.

The respondent thereupon, filed the suit to recover Rs. 627/10/- as price of the articles purchased by the appellant, Rs. 20/1/- as interest thereon, Rs. 150/- as the expenses incurred on the feeding of the mule prior to the institution of the suit at the rate of Rs. 5/- per day, the sum that may be found to be due on account of the expenses on the mule for the subsequent period till the realisation of the amount or the fixation of the price of the mule. The respondent paid a court-fee of Rs. 90/- on the relief to recover a sum of Rs. 767/1/- and undertook to pay the requisite court-fee on the sum to which he may be found entitled for maintaining the mule.

The learned Subordinate Judge passed a decree for a sum of Rs. 4676/- on account of the feeding of the mule and as required by him the respondent paid additional court-fee on the aforesaid amount. As the respondent had already paid court-fee on a sum of Rs. 150/- on account of feeding charges for the period prior to the institution of the suit he should have been required to pay further court-fee on the sum of Rs. 4526/- only.

3. A preliminary objection has been raised on behalf of the respondent that the present appeal lay in the Court of the District Judge and not in this Court, as the value of the subject-matter of the suit was less than Rs. 5000/-.

4. The relevant portion of paragraph 31 of the Himachal Pradesh (Courts) Order, 1948 runs as below :

"Save as otherwise provided by any law for the time being in force, appeals From decrees of Courts exercising original jurisdiction shall lie as follows :

(a) from a decree of a Subordinate Judge in a suit of value not exceeding five thousand rupees, to the Court of the District Judge; and

(b) in all other cases, to the Court of the Judicial Commissioner."

5. Value in relation to a suit means the amount of value of the subject-matter of the suit, vide para 2(7).

6. The question, therefore, that arises for decision is as to what was the amount or value of the subject-matter of the suit. According to the respondent the value of the subject-matter of the suit was Rs. 797/1/- whereas according to the appellant such value was Rs. 5323.6 NP.

7. There is divergence of judicial opinion on the question as to what is the value of the subject-matter in suits for accounts or mesne profits.

8. The Madras High Court has consistently held dial the value given in the plaint should be the value of the subject-matter of the suit, vide P. Kannayya Chetti v. R. Venkata Narasyya, ILR 40 Mad 1 : (AIR 1918 Mad 998 (2)) (FB); M. Sampathirayudu v. S. Venkataratnam, AIR 1940 Mad 878. The Mysore and Jammu and Kashmir High Courts have followed the Madras view, vide, Abdul Razack Saheb v. Abdul Jaleel Saheb, AIR 1954 Mys 62 and Abad Mir v. Mahda Bhat, AIR 1960 J. and K. 89.

9. In the last mentioned case, it was held that there was nothing in the Court-fees Act to indicate that the amount at which the plaintiff valued his relief in an account suit was only a tentative value. On the other hand a true construction of Section 7(4)(f) appeared to be that the amount at which the relief sought by the plaintiff is valued in the plaint in an account suit, to the only valuation of that suit for pur

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