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Judgment
Umamaheswaram, J.—This appeal is posted for orders by reason of an objection taken by the office that the Court-fee paid by the Appellant is insufficient and is not in accordance with the terms of Section 17 of the Court-fees Act. The suit was instituted by the Respondent for the enforcement of two separate mortgage-deeds, dated 13th February, 1945 and 31st March, 1949, executed by the Appellant for the sums of Rs. 30,000 and Rs. 24,000 in respect of. distinct loan accounts. The Court-fee was paid on the plaint by the Respondent in accordance with the terms, of Section 17 of tire Court-fees Act. The Court below passed a decree for a single consolidated amount due in respect of the two mortgages and the Defendant-Appellant has paid Court-fee on the aggregate amount Rs. 80,684-13-0 decreed by the Court below. The office look an objection that in accordance with the terms of Section 17 Court-fee should be separately calculated on die amounts due under each of the mortgages and that the aggregate amount should be paid.
The scope and effect of Section 17 of the Court-fees Act was recently considered by the Madras High Court in In Re: D. Lakshminarayana Chettiar and Another, , on a Court-fee reference made, by the Master. The Full Bench accepted the view of, the Allahabad High Court and laid down that the words "distinct subjects" should be understood as meaning separate cause of. As to how the Court-fee should be paid under the terms of the section is made clear at page 408 (of Mad LJ): (at p. 595. of AIR) in the following terms:
A simple illustration makes the meaning of the section clear. A files a suit against B on two promissory notes exercised by B in As favour. The value of the relief in respect of the first promissory note is taken and the Court-fee on such value is calculated. Then the value of the relief on the second promissory note is taken and the Court-fee payable on such value is arrived at. Thereafter the said two sums are added and the total amount is the Court-tee payable on the plaint.
At page 411 (of Mad LJ): (at p. 597 of AIR) after referring Jo the provisions of Order 2, Rule 3, Code of Civil Procedure, the object of enacting Section 17 is stated in the following terms:
But there is no indication in the CPC that the Legislature intended that the Government should forego Court-fee if the Plaintiff took advantage of the enabling provisions. There is also no reason why the Court-fee should be reduced or given up by the Government when a Plaintiff seeks and gets the same reliefs in one which but for enabling provisions he could have got only by riling separate suits. Section 17 of the Court-fees Act, in my view, is designedly enacted to prevent such evasion of Court-fee.
In view of this Full Bench decision, it is no longer open to the Appellant to contend that the words ''''distinct subjects" are not equivalent to "distinct causes of action.
Sri Ch. Ramakrishna Rao, .the learned advocate for the Appellant, sought to contend that, even assuming that tire words "distinct subjects mean distinct causes of action, the terms of Section 17 would only apply when a single suit is brought by reason of the enabling provisions of the CPC and not when a single suit has to be coropulsorily filed under the mandatory terms of Section 67A of the Transfer of Property Act. In support of this contention, the learned advocate referred me to several passages in the judgment of Subba Rao J. (as he then was) delivered on behalf of the Full Bench. He, particularly referred to the answer given by the Full Bench which runs in the following terms:
Distinct subjects'' in ''Section 17 of the Court-fees Act mean distinct causes of action in respect of which separate suits should be filed but for the enabling provisions allowing them to be clubbed up "in one suit. He also laid emphasis on the passage at page 411 (of Mad LJ): (lat p. 597 of AIR) which is as follows:
If Section 17 of the Court-fees Act is read with the aforesaid provisions of the Code of Civil Procedure, it shows that Section 17 is intended to prescribe court-fee on a consolidated1 plaint uniting distinct causes of action in respect whereof the Plaintiff if he chooses could filly,. separate suits.
Basing his argument on this passage, the learned advocate contended that as the Plaintiff could not file separate1 suits in respect of two mortgage documents, by reason of the provisions of Section 67A of the I-transfer of Property Act, he was entitled to pay pollard-fete on the aggregate amount decreed against:
His client. If cannot agree with this contention. The terms of Section 17 are quite clear. The words of limitation sought to be read by the learned advocate fop the Appellant are not to be found in the section. The section enacts that if a suit embraces two or more-distinct subjects, that is, two more distinct causes of action, the plaint or memorandum of appeal should be charged on the aggregate amount of the fee to which tire plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under the Act.
A single suit might be filed in respect of two or more distinct causes of action by reason of enabling provisions in the CPC or by reason of any other statutory provision If such a suit is filed, the Court-fee will have "to be paid in the manner provided in Section 17. The Court-fee payable on each cause of action has to be computed and the aggregate amount paid on the plaint or memorandum of appeal. There is not a whisper in the section that it is only if the causes of action are combined under the enabling provisions of the CPC that the terms of Section 17 are attracted.
It is not necessary that the Plaintiff should have the right or liberty to institute separate suits in respect of those causes of action. Neither the second part of the section which entitles the Court to proceed with separate trials under the terms of Order 2 Rule 6, CPC (corresponding to Section 9) nor the marginal note "multifarious suits controls-the plain language of the section. The words used by the learned Judge in the passages relied on are only illustrative and not exhaustive.
The learned Judge does not state that if the Plaintiff is bound, under the terms of Section 67A to file a single suit and not separate suits in respect of the several mortgages, the suit should be regarded as based on a single cause of action or that it forms a single subject within tire meaning of Section 17. Such a case is not visualised or specifically dealt with by the Full Bench. The decision of Panchapagesa Sastry J., in Apparao, In re, 1951-2 Mad LJ 86 : AIR 1952 Mud 53) (B), holding that the suit based on the four anomalous mortgages should be regarded as comprising a single subject was, however, expressly overruled by the Full Bench in In Re: D. Lakshminarayana Chettiar and Another, at pp. 599-600) (A).
The case in which a similar contention was raised and overruled is that of Venkatasubba Rao J., in Vagesana Kanakaraju Vs. Vagesana Venkataraju and Others, at p. 317 :AIR 1935 Mad 262 (1) at p. 262) (C). In the order of reference, Subba Rao J; (as he then was) referred to this decision at page 406 (of Mad LJ) as an authority for holding that in if a suit to enforce two security bonds, the Court-fees should be paid on the two bonds as on distinct subjects but has not adverted to this contention. Dealing with the argument which is now put forward by Sri Ramakrishna Rao on behalf of the appellate Venkatasubba Rao J., held as follows: %�
What is argued is that as u/s 67A of the Transfer of Property Act a person is bound to include in the same such different mortgages held by him to follows from this, that the suit relates to one subjugate only and does not comprise as many subjects as there are mortgages. I am not prepared to accept the contention. The principle of consolidation applet by Section 67A has no bearing upon the interpretation of Section 17 of the Court-fees Act. The very basis of Section 67A is that there is more than one subject. The mortgages sued on may be different from one another in their terms and incidents, even the causes of action may have accrued on different dates. All that Section 67A enacts is, that the mortgagee is bound to sue on all the mortgages in respect of which the mortgage money has by the time of the suit become due. In this case the two mortgages are over the same set of properties.......
I respectfully agree with the reasoning of the learned Judge and hold that as each mortgage gives rise to a separate cause of action, Court-fee has to be paid in respect of each cause of action even though a single suit may have to be filed under the terms of Section 67A of the Transfer of Property Act. The reason given by the learned Judge for negativing the argument was that it is impossible to regard a suit based on different mortgages over different properties as 1 elating to one subject for the purposes of the Court-fees Act. It may also be noted that if there is a contract to the contrary the mortgagee is not bound to sue on all the mortgages under the terms of Section 67A.
It cannot be held that if in the exercise of that right separate suits are filed, they are based on separate causes of action but that if a single suit is filed in respect of those mortgages, there is a single subject or a single cause of action. The marginal note t0 Section 17 of the Court-fees Act "multifarious suits" does not in my opinion, limit the general terms of section. The dictionary meaning of "multifarious", is "many'''' or "various". A suit might be bad for multifarious ness when the enabling provisions of the CPC or other statutory provisions such as those contained in the Transfer of Property Act, are ''not complied with.
I am unable to accept the contention that Section 17 should be restricted only to cases in which tire causes of action are combined under the provisions of the CPC or in which adoption is left to the Plaintiff to avail himself of those provisions. In my view, it equally applies to cases in which the causes of action are combined under the provisions of Section 67A of. the Transfer of Property Act. The Judgment of the Full Bench ought to be read as a whole and die passages relied on by the Appellant''s cater in the judgment of Subba Rao J. (as he then was) p ought not to be read or understood as limiting the Section 17 or applying only to cases falling under "the .enabling provisions of the Code of Code of Civil Procedure
There is also no force in the contention that the Full Bench decision in 1954-1 Mad LJ 403 : AIR Pfl954 Mad 594) (A), is in any way inconsistent with the earlier Full Bench decision of the Madras High Court in Pararheswara, Pattar, ILR 54 Mad l:
AIR;1,930 Mad 833)''(D). The Full Bench decision expressly referred to and distinguished on the gr6und that it dealt with a suit for possession of imagine moveable property '' and past mesne profits and the ground'' of that ''decision was expressly stated to be V''lorig course of practice." As there is no conflict between the two- Full Bench decisions, there is no Question of referring the matter to a fuller Bench.
The , observations of Raghava Rao J., in Perama-ayakarh Pillai v, Sivaraman, ,1952-1 Mad LJ 308 at 1952. Mad 419 at p. 452), (E), that ir the case of. two conflicting. Full Bench decision sun of equal strength, the matter .should be referred to a fuller Bench, are not applicable to this case. It may incidentally be noted that the Full Bench decision in Ponnamfnal v. Ramamirda Aiyar, ILR 38 Mad 829 : AIR 1915 Mad 912) (F), was distinguished by the Full Bench decision in In Re: Parameswara Pattar, , (on the ground that it was only for the purpose of Order 2, Rules 2 and 4, CPC Code, that it was held that the claim for possession and the claim for mesne profits were separate causes of action).
Reliance was next placed on the decision of the Lahore High Court in Sher Singh v. Daya Ram, AIR 1932 Lah 465 (FB) (G), in support of the contention that the two mortgages executed by the Appellant should be treated as a single transaction. That decision turned upon the particular facts of that case. It was held that the document of 1925 was not a mortgage either in form or in substance''. It was held that an additional advance had been taken on the security of the land which had been in possession of the Plaintiff as mortgagee since 1874.
Similarly, in Suba Singh v. Bela Singh, AIR 1933 Lah 382 (H), it was held that the second deed did not in any way alter the conditions of the first mortgage-deed that its effect was only to increase the amount of the money secured on die first mortgage. I have no doubt that, on the facts of this case, the two mortgages are distinct and separate having been executed in respect of different loan transactions. The mere fact, that the parties to the two mortgage documents or that the properties covered by the mortgage, are the same, does not lead to the conclusion that they constitute one cause of action and not separate causes of action.
I agree with the office note that even though a single consolidated amount is mentioned in the decree as payable by the Appellant, the appeal should be charged with Court-fee u/s 17 of the Court-fees Act, as the decree is passed in respect of the two amounts due under the two mortgages. The view taken by Krishnamurthy and Mathrubutham in their "Guide to the Law of Court-fees" in Madras (3rd edition) is expressed at page 120 and is in the following terms:
Even where; the claims forming distinct subjects are decreed and a single consolidated amount is mentioned in the decree as payable by the Defendant, an appeal by the Defendant, should be charged with Court-fee u/s 17, if under the judgment the amount is capable of being split up into its component parts relating to, the respective claims.
I agree with their view and hold that the Appellant should pay Court-fee as provided under the terms of Section 17 of the Court fees Act. I grant two months time to the Appellant to revise the memo, of valuation and pay the deficit Court-fee.
Before concluding the judgment, I might mention that" as I felt some difficulty in the "case, I gave notice to the Government Pleader and heard the arguments of his junior Sri Amancharla Garigadhara Rao