Applicability of Section to cases where a decree holder obtains permission to bid and set-of.

This is a revision proceeding against the order of the Second Assistant City Civil Judge, Madras in I.A. No. 349 of 1962 in O.S. No. 1664 of 1961. Since the facts are not in dispute, the point can be simply stated. In certain proceedings of sale of properties, the claimant-mortgagee (revision petitioner here) had the benefit of obtaining a set-off with regard to one sale and the benefit of getting the moneys realised by another sale. He took the money, and also applied for a sale certificate in his favour in the preceding in which he was permitted to bid and set-off. In a brief order, the learned Judge observed that this claimant-mortgagee (revision petitioner here) must pay Court-fee, as claimed in a Office Note, under section 33(3) of the Court-fees Act.

Notice was issued to the learned Government Pleader, and it is conceded that the provision will not apply, and that the order is erroneous. Section relates to suits on mortgages, and we have no such suit here. Under section 33(3) it is only where the mortgaged property is sold in suit and the holder of a prior or subsequent mortgage applies for payment out of the sale proceeds, of the amount due on his mortgage or charge, that he is liable to pay a Court-fee computed on the claimed amount. Learned Counsel for the revision petitioner (Sri Thyagarajan) concedes that there is a lacuna in the law, in that the section does not provide for collection of Court-fee on the mortgage amount, in a situation of the present kind. But the section is patently inapplicable to a sale held in execution of a decree in which a mortgagee obtains permission to bid and set-off and then applies for a sale certificate. It may be that the Act may have to be amended, for a contingency of this kind. But that is another matter. The revision petition is accordingly allowed, and the order of the learned Judge set aside. The amount paid under protest will be refunded to the revision petitioner. No order as to costs.

R.M. ----- Revision allowed.