Suit for mortgagor against mortgagee for declaration and injunction.

Mack, J.-I have had the advantage of perusing the order of my learned brother on this vexed question of Court-fee arising out of section 7, clause (iv)(c) of the Court-fees Act which, as it stands, gives a plaintiff a right to value the relief he seeks in any manner he pleases in a suit to obtain a declaratory decree or order where consequential relief is prayed for. This right unrestricted in cases coming within the scope of section 7, clause (iv)(a), (b), (d), (e) and (f) is circumscribed by the proviso added by section 6 of the Court-fees (Amendment) Act, 1922, that in suits coming under section 7, clause (iv)(c) where the relief sought is with reference to any immovable property, such valuation shall not be less than half the value of the immovable property calculated by section 7(v). If that proviso is applicable to the suits before us filed by a mortgagor and puisne mortgagee for a declaration and injunction to restrain the mortgagees exercising their powers of sale under section 69(3) of the Transfer of Property Act, the amount due on the mortgages including unsealed interest amounting to about eight lakhs, not only will a very substantial ad valorem Court-fee be payable but the suits will be far above the financial jurisdiction of the City Civil Court which is limited to Rs.10,000.

The petitions raise, as it appears to me, a general and a special point for determination: (1) the valuation for Court-fee and jurisdiction, which under section 8 of the Suits Valuation Act must be the same, on suits such as these by a mortgagor or puisne mortgagee to restrain the mortgagees from exercising their powers of sale under section 69 and (2) the Court-fee payable on a suit or proceeding by a mortgagor who claiming to be an agriculturist seeks to have the scaled down amount declared and to restrain the mortgagee from exercising his powers of sale except to the extent of the scaled down amount.

The short facts relevant to my approach to this fiscal question are these. The original mortgagees, Mr. and Mrs. Irani are the holders of several mortgages, some of them by assignment, from the mortgagor Batcha Sahib, and, acting under section 69 of the Transfer of Property Act notified the hypotheca, which comprises cinemas and urban property in Madras, and also extents of wet and arable land outside the City of Madras for sale in 1953. The mortgagor, Batcha Sahib, first filed a suit, O.S.No.1490 of 1953, in the City Civil Court for a declaration that the attempt to exercise the power of sale by the mortgagees was wrongful and illegal and for an injunction to restrain the sale notified for 15th October, 1953, or any other date. Various grounds were alleged, namely, that the mortgagors would be put to great loss, that the mortgagees were actuated by a desire to knock away the property for a song, that the statutory requirements of section 69 were not fulfilled and so on. This suit was valued at Rs.15 for declaration and Rs.15 for an injunction in accordance with what is stated to be existing practice in the City Civil Court and a very small Court-fee paid. It was dismissed as withdrawn in terms of a consent memo. filed before Satyanarayana Rao and Rajagopalan, JJ., in C.M.A.No.698 of 1953 which was heard along with a Letters Patent Appeal in an interlocutory matter, by which the mortgagor agreed to pay the mortgagees Rs.1,60,000 on or before 15th August, 1954 and the mortgagee agreed to release a cinema in Pallavaram and 1.4 acres in a village to enable the mortgagor to make the payment, and the power of sale, if no default was made was not to be exercised on or before 15th August, 1954. Then, in May, 1954, the mortgager filed O.S. No. 980 of 1954 in the City Civil Court claiming to be entitled to relief under section 13-A of the Agriculturists Relief Act as amended by Act XXIII of 1948. Under this amendment and also under Act V of 1954, known as the Moratorium Act, he sued for a declaration valued at Rs.100 that a sale by the mortgag