Venkatarama Sastrigal (deceased) and Others vs Sabapathi Thevar

The matter of Court-fees payable on this appeal has been argued before us and we have had the assistance of the learned Government Pleader.

The question is what is the value of the subject-matter in appeal by a defendant from a preliminary mortgage decree ordering the sale of the

mortgaged property and enabling the plaintiff to apply for a personal decree for any balance left after the sale, when the appellant does not dispute

the liability of the property but disputes only his personal liability. The appellant in this case though himself not a mortgagor but a purchaser from the

mortgagors has been by the decree put on the same footing of liability as the mortgagors. One possible view is that the subject-matter in appeal is

the whole mortgage amount. But against that there is the obvious answer that the appellant is not disputing the liability of the '' mortgaged property

for the whole debt but only his personal liability for the excess over the net sale proceeds for which alone he is by the decree likely to be made

liable. No authority either way has been cited. On the whole we prefer the latter view, though it involves the difficulty that in many such cases at the

time of appealing from the preliminary decree the amount of net sale proceeds will not be ascertainable as the sale has not been held and the

valuation must therefore be more or less conjectural. The opposite view would lead to the greater inconvenience and injustice of requiring the

appellant to pay Court-fees on an amount which he does not dispute, i.e., the mortgage amount so far as it can be satisfied out of the mortgaged

property.

In this case the sale has been held and the mortgaged properties fetched Rs. 3,600. The appellant must therefore pay Court-fees in this Court

on the decree amount less that sum. Two days after intimation is given by the office to the appellant''s Advocate to pay any deficit amount that may

be found due.