Ramaswami, J.-These appeals cannot be disposed of either on the grounds of appeal or on the question of Court-fee. We have to reopen the matter and hear the parties to decide whether the Commissioner’s report is correct or the Judge’s decision differing from the Commissioner is correct. If the Commissioner’s report is confirmed, the plaintiffs stand to gain a large amount. If the Judge’s decision is confirmed the plaintiffs will have no case. This is apart from the fact that both as against the Commissioner’s report as well as the Judge’s decision grounds have been taken by the plaintiffs and the fourth defendant, that the accounts are all fabricated and they should not have been relied upon. But it is now too late to dispose of the appeals on this point alone because there is other evidence adduced by both sides regarding what should be charged and what should not be charged.

In regard to the grounds of appeal, though amounts are not mentioned in the grounds, objections relating to these amounts have all been stated except as regards the fabrication of accounts which is a general one. They will have to be gone into as these are first appeals.

Turning to the question of Court-fee, the plaintiffs appealing from a final decree can value notionally, because the language used in section 7, clause (iv) (f) is “ according to the amount at which the relief sought is valued in the plaint or memorandum of appeal”. The Privy Council in Faizullah Khan v. Mauladad Khan,1 has construed this language as entitling the plaintiffs to notionally value the claim both in the suit as well as in the memorandum of appeal, even though the appeal may be against the final decree and as against the ascertained amount. This Privy Council decision has been followed in an un-reported decision of a Division Bench of this Court in S.A. No. 1141 of 1934 (reported at page 12 of Summary of Recent Cases in 49 Law Weekly) and in the decision of a single Judge in Ramadoss v. Appalanarasayya1. The plaintiffs therefore can maintain C.C.C. A. No. 64 of 1949 notwithstanding their valuation of the same at Rs. 100. The only thing they have now to be asked to do is to state the amount involved in each objection.

In regard to the appeal preferred by the fourth defendant, C.C.C.A. No. 59 of 1949, it stands on a different footing. We cannot hear his appeal unless he gives us an abstract of the amounts claimed by him under various heads and then he will have to pay Court-fee thereon. It is no doubt true that the distinction between the plaintiff and a defendant who sails with him is a distinction without a difference. In fact in this case both the plaintiffs and the fourth defendant sail together. But the language of section 7, clause (iv) (f) of the Court-fees Act specially applies only to a plaintiff but does not extend that immunity to a defendant appealing.

We have considered the idea whether this distinction without difference can be made the subject matter of a reference to the Full Bench. But we have got the Privy Council decision cited above and followed in other decisions of this Court on the same lines ; and secondly, the Court-fees Act has been radically amended and now even a plaintiff appealing from a final decree must pay the Court-fee on the ascertained amount. Therefore, it might be considered not worthwhile to investigate this point and make it the subject-matter of a reference to a Full Bench. So far as it is known, no other High Court seems to have taken a different view, which is also a matter to be borne in mind.

The net result it seems to us is that notice should be given to the appellants, re-opening the matter, and direct the plaintiffs to file an abstract of the amounts claimed by them and the fourth defendant to do so similarly and pay Court-fee.

Similarly, the cross-objectors should be asked to state the precise amount in dispute and in case they want a decree in their favour, we may ask them to pay Court-fee thereon in addition to what they have already

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