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Bishambhar Narayan Choudhary v/s Manabendra Narayan Choudhary

    C.R. 321 of 2005

    Decided On, 21 January 2008

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE S.N. HUSSAIN

    For the Appearing Parties: Abinash Kumar, Shyam Sunder Sinha, Sukumar Singh, Sunil Kumar Jha, Advocates.



Judgment Text

(1.) HEARD learned counsel for the petitioners and learned counsel for opposite parties No. 1 to 6 and 8. The names of opposite parties No. 9 to 20 have already been deleted on the order of this Court dated 10/8/2007. Furthermore, the name of opposite party No. 7 has already been expunged on the order of this court as he had died.

(2.) THIS Civil Revision has been fi

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led on behalf of defendant-appellant-petitioners challenging that part of order dated 16-12-2004, by which the learned additional District Judge, Fast Track Court-II, Darbhanga directed the defendant-appellant-petitioners to file proper court-fees in Title Appeal No. 15 of 2000.

(3.) MORTGAGE Suit No. 130 of 1961 was filed by the father of opposite parties first set for redemption of mortgage and recovery of Rs. 49,406. 50ps. from the defendants including the petitioners along with interest. The said suit was decreed by the learned subordinate Judge-III, Darbhanga, by judgment and decree dated 2-3-1996 and the defendants were directed to pay the aforesaid amount with interest pendente lite and future, which came to Rs. 1,63,433. 21 ps. Being aggrieved by the said Judgment, some of the defendant-appellant-petitioners filed mortgage Title Appeal No. 15 of 2000 fixing its valuation at Rs. 49,406. 50ps. according to the valuation of the suit. The plaintiffs-respondent-opposite parties raised objection and by the impugned order dated 16-12-2004 the learned Court below directed the defendant-appellants to file proper courtfees. This part of the said order has been challenged by the defendant-appellant-pe-titloners in the instant civil revision.

(4.) LEARNED counsel for the defendant-appellant-petitioners submits that the plaintiffs-respondent-opposite parties themselves fixed the valuation of the suit at Rs. 49,406. 50ps. and hence they are now estopped from raising any objection with respect to the valuation of the title, appeal, which is the same as the valuation of the suit.

(5.) ON the other hand, learned counsel for the plaintiffs-respondent-opposite parties submits that the title appeal had been filed challenging a decree and hence the value of the title appeal must be the value, for which the decree had been passed.

(6.) CONSIDERING the arguments of the parties, materials on record and the provisions of law, it is quite apparent that for a title appeal court-fee is recoverable on the date of the decree which is challenged in the title appeal. It is also clear that at the time of filing of the title suit, the amount due as per the plaintiffs was Rs. 49,406. 50ps. and the relief was claimed for that amount along with interest pendente-lite and future and hence the decree was passed for the said amount along with interest pendente-lite and future. Therefore, the decree was prepared for the entire amount, which was due on the date of the decree, including interest on Rs. 49,406. 50ps. It is also clear that the courtfee has to be fixed also for the purpose of jurisdiction of the trial Court but here in the instant case at the appellate stage, there is no occasion of any dispute with regard to jurisdiction of the lower appellate Court.

(7.) IN the aforesaid facts and circumstances, the appellants have to value their title appeal in the Court of appeal below on the basis of the decree passed by the trial court and also have to pay the court-fees for the said amount.

(8.) IN the said circumstances, I do not find any illegality or any Jurisdlctional error in the impugned order and hence this Civil revisio'n is dismissed. However, the seristedar of the lower appellate Court would check up the figure and in case it finds any mistake in his earlier report he should correct the same. Revision dismissed
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