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Madras High Court
Subrahmania Pattar vs Valiya Nayar And Ors. on 26 July, 1898
Equivalent citations: (1898) 8 MLJ 187


1. We think the District Judge was wrong in refusing to allow the payment of the court-fee stamp with reference to the alternative prayer of the plaint and in dismissing the suit accordingly. The stamp paid was estimated on the footing of the mortgage of 1858, which was the only mortgage admitted by the plaintiff. The stamp amount did not cover the additional amount due under the mortgage of 1874. It was competent to the District Munsif on reading the plaint to call for the balance due. This he did not do. When the matter came up on appeal before the District Judge, the latter might have adopted the same course and given the plaintiff time to pay the difference as required by Section 54 of the Civil Procedure Code, Except for that Section, there is no provision of law entitling the District Judge to reject the suit unconditionally on account of the defective court-fee stamp.

2. We must reverse the decree and direct the District Judge to give an opportunity to the plaintiff to pay the difference in Court stamp within a time fixed. The District Judge will, on the duty being paid, have to determine in what terms with reference to the mortgage of 1874, the redemption is to take place and to give a decree accordingly. If the court-fee is not paid within the time fixed, the plaint should be rejected.

3. As to costs, we direct appellant to bear his own costs of the appeal. Other costs to be provided for in the revised decree.

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