JUDGMENT
S.J. Murphy, Ag. C.J.
1. This is a reference under Section 5 of the Court-fees Act, the point for decision being whether the appeal in question has been properly valued in the following circumstances.
2. The suit was for partition and possession of a half share in certain property and for mesne profits. The mesne profits were determined at Rs. 15,910 and an order was made against the defendants for this amount. They do not dispute the amount in appeal, but only the fact that the order has been made against them personally, whereas being the heirs and legal representatives of the original defendant, they claim that this should not have been done and have stamped the appeal with Rs. 15 only worth of Court-fee stamps under Article 17(vii) of the Court-fees Act, while in the Taxing Officer’s opinion it should have been stamped as for an appeal against a decree for Rs. 15,910. Mr. Walavalkar for the applicant relied on the case of Radha Kishan v. Mektab Mian (1925) 7 L.L.J. 364. The reasoning there used was that where the objection was only to the manner in which the decree could be enforced, taxation would be under Article 17(vii) and reference was made to Harcharan Das v. Sukhraj Das (1921) 62 I.C. 979, Rup Chand v. Fateh Chand (1911) I.L.R. 33 all. 705, and Fatteh Chand v. Bilas Rai (1916) P.R. No. 96 of 1916. I have also been referred to Ramakrishna Reddy v. Kotta Kota Reddi (1906) I.L.R. 30 Mad. 96 F.B., Jugal Pershad Singh v. Parbhu Narain Jha (1910) I.L.R. 37 Cal. 914, Madho Ray v. Musammat Bibi Mahbuwan Nisa (1926) I.L.R. 5 Pat. 721, Atma Singh v. Nathu Mai (1926) I.L.R. 7 Lah. 215, and Kachera v. Kharag Singh (1910) I.L.R. 33 All. 20, at the hearing, by Mr. Walavalkar for the appellant and the Government Pleader for the Office.
3. There is no ruling of this Court exactly on the point, which really is, what is the value of the decree passed against the defendants personally as compared with the one they seek to obtaina decree against the property in their hands as heirs and legal representatives of the deceased defendant. In some cases, say where the value of the property in the defendants’ hands as heirs is small, it is obvious that the appeal would be against the difference between their liability under the decree and such value; but where it is sufficient to meet the amount of the decree, it would come to the value of the extra remedy available to a decree-holder in the case of a decree which can be executed personally against the judgment-debtors. In this case the income from the land has been valued at well over Rs. 1,000 per annum, and it is obvious that the assets of deceased Ravji in his heirs’ hands are sufficient to enable the decree-holder to recover the full amount due to her out of them, so that iri effect what the appeal is directed against is the decree being executed otherwise than out of deceased’s property. Such an appeal does not seem to me to fall under any other provisions of the Court-fees Act, and to be covered by Article 17(vii) of the Second Schedule of the Court-fees
4. Act as being a case “where it is not possible to estimate at a money value the subject-matter in dispute, and which is not otherwise provided for by this Act.”
5. I accordingly hold that the appeal should be stamped under this provision.
