Kundan Lal vs Mohinder Singh and Others

S.P. Goyal, J.—This revision is directed against the order of the trial Court dated 27th October, 1986, whereby the Petitioner was required to pay ad velorum court-fee on the mortgage amount.

The suit for possession giving rise to this petition was filed by the Petitioner alleging that the land in dispute was mortgaged through a registered deed dated 16th June, 1983 and its possession duly delivered to him and that later on the Defendant forcibly and illegally dispossessed him. The trial Court relying upon a decision in Hemnath v. Wilayat Ahmed AIR 1929 Oudh 321, held that the suit would fall u/s 7 (ix) of the Court-Fees Act, and as such ad velorum court-fee would be payable on the principal amount secured. This decision was dissented from in a later decision of the same Court in AIR 1931 366 (Oudh) . That apart, the suit is obviously for possession, and, therefore, would fall u/s 7 (ix), The fact that the possession is claimed as a mortgagee would be of no consequence. If the mortgagee had not been put in possession initially in pursuance of the contract, then the suit would be in substance for the enforcement of the contract of mortgage, and in that case ad velorum court-fee would be required on the principal amount secured. But where the mortgagee has been put in possession in pursuance of the contract of mortgage and was later on dispossessed, it would be simply a suit for possession on the basis of title falling u/s 7 (v) of the court-Fees Act. This petition is, consequently, allowed and the impugned order reversed. No costs.