JUDGMENT

1. This is an office report relating to a second appeal arising out of a suit under Section 33, Agriculturists' Relief Act. The court-fee paid on the appeal is Rs. 15, but the office reports that ad valorem court-fee should be paid, and the deficiency amounts to Rs. 155. An ad valorem court-fee was paid on the first appeal, and the present appeal challenges the order whereby the appellants were made to pay this ad valorem court-fee in the lower appellate Court. The appellants' learned Counsel argues that a suit under Section 33 is a suit for a declaration and that the decree cannot be executed until a later stage provided in Sub-section (2) "after the declaration has been made as to what amount is still payable by the plaintiff to the defendant, the Court shall, on the application of the defendant, and if the money is payable, pass a decree in favour of the defendant."

2. He regards the decree in the suit as a preliminary declaratory decree which becomes final only on the application and payment of ad valorem court-fee. Since no such application has as yet been made, the appeal, he says, is against a declaratory decree and nothing more. As such ad valorem court-fee is not payable, but only a fee of Rs. 15. He says the law was not clear until the amendment contained in Sub-section (3) was made. Further more, he says the law has made it dearer still by the fact that the amendment contained in Sub-section (3) of this section read with Schedule 6 of the Act makes the maximum fee payable on a plaint under Sub-section (1) Rs. 15 only which is the same as the court-fee payable in a declaratory suit. This change was made by Section 4, Agriculturists' Relief (Amendment) Act, IX of 1937. The remainder of the court-fee, that is the difference between Rs. 15 and the ad valorem court-fee on the amount declared, has to be paid before the decree can be executed.

3. This matter has twice come up before the Allahabad High Court. In Pahlad Singh v. Niadar Singh, AIR1938All467 a Bench of the Allahabad High Court held that ad valorem court-fee is payable on an appeal whether the defendant has or has not applied for and obtained a decree under Sub-section (2) of the section. The reason for this is that the declaration obtained under Sub-section (1) is a decree in a suit for account of money within the meaning of Section 2(2), Civil P.C., and the provisions of Section 7(iv)(f), Court fees Act, apply. So the court-fee will be computed on the amount by which the relief is valued in the memorandum of appeal under Article 1 of Schedule I of the Act. The next is a Pull Bench decision reported in Harendra Shanker v. Khiali Ram, AIR1940All504 in this it was held that a suit under Section 33, U.P. Agriculturists' Relief Act, is a suit for accounts and is not a declaratory suit. It was held that for the purposes of court-fee, such a suit is governed by Section 7(iv)(f), Court fees Act, according to which, in suits for accounts, court-fee has to be paid on the amount at which the relief sought is valued in the plaint. This point was decided by the Hon'ble Court after the amending Act had come into force, but since the plaint had been filed before the amending Act came into force, a different rule applied. It was clearly held in this decision that the court-fee is chargeable on the value put on a memorandum of appeal. Their Lordships remarked:

It is clear that the adjudication by the Court in a suit under Section 33 amounts to a decree as it constitutes the final expression of its opinion as to the amount that is still payable by the plaintiff to the defendant or vice versa. The appeal against such a decree if filed by the plaintiff is for the reduction of the amount, and if filed by the defendant is for enhancement of the amount, found due by the trial Court. The appeal is in either ease an appeal against a decree passed in a suit for account and is, therefore, governed by Section 7(iv)(f), Court-fees Act, Section 7(iv)(b) of the amended Court-fees A