Atkinson, J.The plaintiff instituted the present suit against the defendants seeking to set aside a mortgage decree which had been obtained on the 2nd of August 1915. The original mortgage was made by the father and grandfather of the plaintiffs in favour of the father of the defendants. The original mortgage was for a sum of Rs. 11,264 and the mortgage decree by way of compromise was for Rs. 12,200. The plaintiffs had not been born on the date of the execution of the mortgage-bond in 1905; but they were born when the decree by way of compromise was obtained. The plaintiffs bring this suit seeking to set aside the decree of the 2nd of August 1915; and the question which arises for our determination is : what is the proper sum for Court-fees payable on the plaint in this suit. The action is not one for a mere declaration; but for a declaration coupled with certain consequential reliefs which are specifically mentioned in the plaint.

2. The plaintiffs contend that they are only liable to be charged Court fees upon the value of their share of the property; and not upon the entire value of the whole property affected by the compromise decree. They contend that the value of the entire property is Rs. 2,000 and that their share is two-thirds of Rs. 2,000. The learned Subordinate Judge has held that the plaintiffs are liable to pay a Court-fee on the total amount of the compromise decree sought to be set aside, on the ground that if the decree is set aside the plaintiffs will be benefited to the extent of the total value of the decree, and that, therefore, the proper Court-fee payable by them should be assessed upon the total amount of the decree.

3. Mr. Kulwant Sahay who appears on behalf of the defendants has raised two points for our consideration. The first is a mere technical point by which the learned Vakil submits that this Court ought not to interfere with the order of the Judge at this stage of the proceedings in revision; that the suit has not been disposed of; and that the proper procedure under the law would have been that the plaint should in the first instance be rejected by reason of the default of payment of the Court-fees ordered by the Court; and that when the plaint was so rejected, it would be open to the plaintiffs to come to this Court in appeal from the order rejecting the plaint.

4. There may be a good deal to be said in favour of Mr. Kulwant Sahays contention with regard to the regularity of procedure; but this Court has, as a matter of fact, interfered in interlocutory matters like the present on former occasions; and it appears to us that where the record of the case has been sent for by this Court and there appears on the record an obvious error, it is right and proper that this Court should dispose of the matter even at this stage of the proceedings having regard to the erroneous finding touching a question of jurisdiction by the lower Court, and thus save the parties to the litigation unnecessary expenses and undue delay.

5. The second point raised by Mr. Kulwant Sahay is that what is really the subject-matter in the present suit is the validity of the compromise decree and that therefore Court-fee must be paid on the full value of that decree. Mr. Mullick on the other hand urges that it is not the value of the decree which is in dispute so far as his clients are concerned, but their two-thirds share in the property in suit which is valued at or about Rs. 1,300.

6. We have been referred to many cases by both sides. Mr. Kulwant Sahay in support of his argument refers us to a case reported as Harihar Prasad Singh v. Shyam Lal Singh 21 Ind. Cas. 404 [LQ/CalHC/1913/107] : 40 C. 615. In that case the plaintiff brought a suit to set aside a decree on the ground of fraud. The property in suit was valued at Rs. 7,000 and the decree which was sought to be set aside was valued at Rs. 2,794. Harrington, J., in delivering the judgment of the Court held that inasmuch as the real value of the relief claimed was Rs. 2,794, the plaintiff was liable to pay a Court-fee upon that amount. I think that this decision must be read in conjunction with the decision of their Lordships of the Privy Council reported as Phul Kumari v. Ghanshyam Misra 7 C.L.J. 36 : 35 C. 202 : 35 I.A. 22 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 17 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 5 A.L.J. 10 in which their Lordships say at page 43 as follows: The value of the action must mean the value to the plaintiff. But the value of the property might quite well be Rs. 1,000, while the execution debt was Rs. 10,000. It is only if the execution debt is less than the value of the property that its amount affects the value of the suit." In the case decided by Harrington, J., it is clear that the value of the decree was less than the value of the property and, therefore, it was rightly held in that case that the Court-fee should be assessed upon the value of the decree. In the case before us, however, the value of the property, so far as the plaintiffs share is concerned, is only Rs. 1,300 odd, whereas the value of the decree sought to be set aside is Rs. 12,200, and applying the principle laid down in the judgment of their Lordships of the Privy Council it seems to us that the plaintiffs are only liable to pay Court-fees assessed upon their share of the property affected by the compromise decree. Mr. Kulwant Sahay refers us to another case viz., Umatul Batul v. Nauji Kuar 6 C.L.J. 427 : 11 C.W.N. 705. That was a decision of Mookerjee and Holmwood, JJ., but it is apparent that in that case, as also in the case reported as Harihar Prasad Singh v. Shyam Lal Singh 21 Ind. Cas. 404 [LQ/CalHC/1913/107] : 40 C. 615 the person seeking to have the decree set aside was substantially entitled to the entire property which would be affected if the decree was set aside. In the case before us, however, the plaintiffs are not entitled to the entire property but only to a two thirds share in it. We are of opinion, therefore, that the learned Subordinate Judge was wrong in directing that the plaintiffs were liable to pay Court-fees assessed on the total value of the decree. This view is supported by the decision reported as Ganesh Bhogat v. Sarada Prasad 30 Ind. Cas. 111 [LQ/CalHC/1914/281] : 42 C. 370 : 19 C.W.N. 895. The facts of that case are not distinguishable from the facts of the case now before us. The decree sought to be set aside was for over Rs. 22,000, but the plaintiffs share in the property in suit was valued at Rs. 9,000 only; and their Lordships who decided that case held that the Court-fee payable must be assessed not upon Rs. 22,000 but upon Rs. 9,000. In our opinion the same principle must apply to the case before us and accordingly we direct that the order of the learned Subordinate Judge, dated the 7th of September 1917, be set aside and that the Subordinate Judge do proceed with the hearing of the case upon the plaintiffs paying a Court-fee assessed upon the value of their two thirds share in the property in suit.

7. This application succeeds and is allowed with costs measured at two gold mohurs.

Chapman, J.

8. I agree.