The main legal point established in the judgment is the interpretation and application of the Court Fees Act in the context of foreclosure decree and compensation under S. 144, Civil Procedure Code.

Drake-Brockman—In this case the present respondent, Kanchhedilal claimed a final decree for foreclosure on foot of a mortgage and under that decree remained in possession of the mortgaged fields between three and four months. In appeal the decree was sat aside and the judgment debtor after being restored to possession applied under S. 144, Civil Procedure Code, for compensation alleging that some of the land was improperly left fallow and that crops which he had sown in the rest deteriorated owing to the decree-holders neglect. On the application a Court-fee of 8 annas was properly paid under Art. 1, Sch. II, Court Fees Act. The Subordinate Judge who dealt with the application declined to hold the decree holder responsible for leaving part of the land fallow and found that no damage had been caused to the crops actually raised. The application was therefore dismissed with costs and the judgment debtor appealed to the District Court which, after admitting and registering the appeal, rejected the memorandum of appeal on the ground that an ad valorem Court fee was payable on it according to the amount claimed under Art. 1, Sch. II, Court-Fees Act, whereas the judgment-debtor had paid 8 annas only, and on being given time to make good the deficiency had failed to do so.

2. This decision was based on Jagdip Narain Singh v. Mahant Keshogir,1901 AWN 180, a case decided by a single Judge of the Allahabad High Court on the 13th August, 1900 at which time the following order passed in exercise of the powers conferred by S. 35 of the Court Fees Act was in force :

The Governor-General in Council is pleased to direct that the fee chargeable on appeals from orders under Cl. (c) of S. 244 of the Code of Civil Procedure (Act XIV of 1882) shall be limited to the amounts chargeable under Art. 2 of the Second Schedule to the Court Fees Act, 1870.

3. It was held that where on an application under S. 583, Civil Procedure Code, 1882, compensation for the loss of possession of land in the shape of mesne profits was prayed for, the Court-fee payable on the memorandum of appeal was an ad valorem fee. The decree of the Appellate Court contained no express order directing the plaintiff (appellant) to restore possession to the defendant (respondent) or to pay him the mesne profits but the learned Judge held that mesne profits were granted by way of executing the -decree passed in appeal and that the order for restitution amounted to a decree as defined in S. 2 of the Civil Procedure Code, 1882.

4. The judgment-debtor has appealed to this Court and the decree holder has raised a preliminary objection that no appeal lies.

5. It is contended for the respondent that, while S. 2(2) in the Civil Procedure Code of 1908 includes the rejection of a plaint in the definition of a decree, the rejection of a memorandum of appeal is not so included and that a right of appeal is not a mere matter of procedure and cannot exist unless expressly conferred. In support of this view I am referred to the remarks of Bose, A.J.C., in Onkar v. Lakmichand,1909 5 NLR 130 and to Nur-ud-din Khan v. Pran Kishan,1918 16 AllLJ 630. In the latter case it was held that no appeal lies against the order of an appellate Court returning a memorandum of appeal to be presented to the proper Court.

6. It is also contended on the strength of my own decision in Faridbi v. Mohamad Amin,1913 9 NLR 33 that S. 107 (2) read with S.141 of the present Civil Procedure Code does not suffice to place the rejection of a memorandum of appeal for the amount of Court-fee on. the same footing as the rejection of a plaint.

7. For the appellant on the other hand it is urged that the memorandum of appeal having once been admitted could not thereafter be rejected and that the appeal should therefore be considered to have been dismissed under S.10(ii) of the Court Fees Act, That provision, however, has plainly no application as appears on a perusal of S.9 of the Act. In Trimbak v. Madho Rao,1905 1 NLR 103 it was he