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Judgment
Stevens, J.—The Plaintiffs in the present suit were the executants of a patowa deed in favour of the principal Defendant. They sued for the cancellation of the deed and for possession of the mortgaged property, on the ground that the mortgagee had failed to carry out some of the conditions of the deed, and in particular that he had not paid by far the greater part of the mortgage money that he had bound himself to pay. The suit was valued within clause 5, sec. 7 of the Court-fees Act as a suit for possession of land at ten times the Government revenue payable on the property mortgaged. Towards the conclusion of the case in the lower Court, the question was raised by the learned Subordinate Judge whether this was a proper valuation of the property for the purposes of the Court-fees Art. He decided that it was not, and that the Court-fee should be calculated under clause 9 of the section, on the ground that the suit was one against a mortgagee for recovery of mortgaged property. He therefore called upon the Plaintiffs to make good the deficiency, by paying the Court-fee according to the principal money expressed to be secured by the instrument of mortgage. This the Plaintiffs delined to do, and therefore he rejected the suit under sec. 54 of the Civil Procedure Code.
Two questions have been argued before us in this appeal. The first is whether clause 5 or clause 9 of sec. 7 of the Court-fees Act is applicable to this case, and the second is whether it was competent to the Subordinate Judge to reject the suit at so late a period of the proceedings. We think that the Subordinate Judge was right in respect of both these matters. Clause 9, on the face of it, applies to suits against a mortgagee for the recovery of the property mortgaged, and this appears to us to be clearly such a suit.
It has been argued that the marginal note shows that what is intended by suits against a mortgage e for the recovery of the property mortgaged are suits to redeem, and it is contended that, although the mortgagee in this case had entered upon the property under the mortgage, the transaction would cease to be a mortgage in consequence of the failure on the part of the mortgagee to fulfil his part of the contract in accordance with the terms of the bond.
We see no force in the second of these contentions. As regards the first, we think that to some extent at any rate, that is, to the extent of the mortgage-money which was in fact paid by the mortgagee, this is in reality a suit to redeem.
In this view it is not necessary to consider the question whether there is any conflict between the marginal note. and the body of the section.
As regards the question whether it was competent for the Subordinate Judge to act under sec. 54 of the CPC at the period at which be did so, we think that the balance of authority is distinctly in favour of his action. The authorities are all considered by the Allahabad High Court in the case of Kishore Singh v. Sabdal Singh ILR 12 All. 553 and we find no difficulty in agreeing with the conclusion which was arrived at in that case, that sec. 54 of the CPC may be applied at any stage of a suit. We dismiss this appeal with only one set of costs to be divided among the several appearing Respondents.