The court upheld the practice of compelling a defendant to follow a plaintiff's valuation for appeals from preliminary decrees in suits for account, emphasizing the plaintiff's role in valuing the relief.

Alfred Henry Lionel Leach, C.J.

1. This reference raises the much discussed question of the bearing of Section 7(iv)(f)of the Court-Fees Act of 1870 when the defendant is the appellant. In a suit for recovery of possession of immovable property and for an account filed in the Court of the Subordinate Judge of Madura the plaintiff valued his relief, so far as it concerned his claim for an account, at Rs. 3,000. He obtained a preliminary decree, which was followed in due course by a final decree, by which he was declared to be entitled to recover a total sum of Rs. 32,000. The preliminary decree was challenged on appeal to the District Court of Madura, but this appeal had not been decided at the time of the passing of the final decree by the trial Court. An appeal against the final decree was also filed, and the District Court heard the two appeals together. The result was that the decree of the trial Court, so far as it directed the payment of money, was varied, it being held that the plaintiff was only entitled to recover Rs. 6,554-5-2. The defendants concerned then appealed to this Court and valued their relief at Rs. 100, paying the court-fee of Rs. 11-3-0 thereon. This valuation was accepted by the office, as it was in accordance with the decision of this Court (Ramesam and Mockett, JJ.) in the case of In re Nukala Venkatanandam (1932) 64 M.L.J. 122 : I.L.R. 56 Mad. 705, but when the appeal came before Burn. J., for admission my learned brother questioned the right of the appellants to make an arbitrary valuation and suggested that In re Nukala Venkatanandam (1932) 64 M.L.J. 122 : I.L.R. 56 Mad. 705, should be re-considered as it appeared to go beyond the decision of the Privy Council in Faizulla Khan v. Mauladad Khan (1929) 57 M.L.J. 281 : L.R. 56 IndAp 232 : I.L.R. 10 Lah. 737 (P.C.) on which Ramesam and Mockett, JJ., had relied. This Bench has consequently been constituted to consider the whole question of the stamping of appeals by defendants in suits for accounts, as it is important for the legal profession and necessary for the guidance of the officials of the Court whose duty it is to check the stamping of memoranda of appeal that there should be a clear statement of the practice to be followed as regards both preliminary and final decrees.

2. The Courts of India have always regarded Section 7(iv)(f) of the Court-Fees Act as applying to appeals by defendants as well as to appeals by plaintiffs, but whether there is justification for including defendants is open to question. Certainly support can be found for the contention that the legislature did not intend it to apply to appeals by defendants. In the first place the Act was passed when the Civil Procedure Code of 1859 was in force and that Code did not contemplate an appeal from a preliminary decree in a suit for an account. In the second place, Section 11 which was inserted to prevent a litigant escaping payment of the proper court-fee only applies to plaintiffs. There is no corresponding provision to meet the case of a defendant who appeals and under-values his relief. Then Clause (iv)(f) itself only mentions the plaintiff. It states that in suits falling within the clause the amount of fee payable should be computed according to the amount at which the relief is valued in the plaint or memorandam and concludes with these words:

In all such suits, the plaintiff shall state the amount at which he values the relief.

3. Although the memorandum of appeal is included, the emphasis is on the plaintiff. It is he who must value the relief. The wording of the clause and of Section 11 read in the light of the history of the section certainly does suggest that the defendant was not within the contemplation of those who were responsible for the drafting of the Act. Assuming this to be in fact the case, it would not follow that a defendant-appellant would escape payment of a court-fee. Section 4 or 6 read with Article 1 of Schedule I could be called in aid to prevent this, a