Kulwant Sahay, J.

1. This is an appeal by the defendant against the decree of the District Judge of Shahabad, reversing a decree of the Subordinate Judge of that place and decreeing the suit with costs. The facts of the case are shortly these.

2. The defendant is the proprietor of Mauza Isarpur, Tauzi No. 883 in the District of Shahabad. In this Mauza the plaintiffs had a holding of 88 bighas 19 dhurs of land which according to survey measurement, came to 20, 23 acres in area. In the year 1899 the predecessor-in-interest of the defendant brought Rent Suit No. 18 of 1899 for recovery of arrears of rent for the year 1306. On the 26th September 1899, a decree for rent was passed in that suit and in execution of decree the plaintiffs' residential house was sold and purchased by the decree-holder on the 4th of February 1913. Subsequently the holding of the plaintiffs was sold in execution of the same decree on the 2nd of February 1914, and was purchased by the decree-holder himself. Objections were subsequently made to the delivery of possession to the decree-holder auction-purchaser on the ground that the execution was time-barred, and that the decree itself was fraudulently obtained. These objections were disallowed and the decree-holder was put in possession of the properties in suit The present suit was brought by the plaintiffs for a declaration that the decree dated the 26th September, 1899, was obtained fraudulently and surreptitiously without the knowledge and information of the plaintiffs, that the proceedings in execution of the said decree were taken secretly in collusion or concert with the Court peons and by suppression of all the processes and that the auction sale in execution of the decree was illegal and invalid on the ground of these irregularities and also on the ground that the price fetched at the sale was grossly inadequate causing substantial loss to the plaintiffs. The plaintiffs therefore prayed for a declaration that the decree and the sale were not legally binding on them, that the sales held on the 4th of February 1913 and on the 2nd of February, 1914, were altogether inoperative and the defendant had not and could not in law acquire any right under the sales. The suit was originally valued at Rs. 5,509 which was the valuation of the house and the holding as fixed by the plaintiffs. The plaint was presented in the Court of the Subordinate Judge of Shahabad, on a Court-fee stamp of Rs. 13 on the 3rd of February 1917. On the 4th of February 1917 a report was made by the office to the effect that the proper Court-fee payable on the plaint was ad valorem fee on Rs. 5,200. The Subordinate Judge thereupon ordered ad valorem Court-fee to be paid or cause to be shown why ad valorem fee should not be paid. Pleaders were heard and the Court decided that the Court-fee payable on the plaint was ad valorem on the value of the properties which formed the subject matter of the suit. The plaintiffs thereupon filed a petition reducing the valuation of the suit from Rs. 5,500 to Rs. 2,300. The Court apparently accepted this valuation and ordered the deficit Court-fee to be paid calculated on the valuation of the suit at Rs. 2,300. This deficit Court-fee was made good by the plaintiffs on the 1st of May 1917 and the plaint was admitted and duly registered. The defendant appeared and filed a written statement traversing the allegations of the plaintiffs as regards the illegalities and irregularities in obtaining the decree and in taking the execution proceedings. No objection was taken as regards the valuation of the suit and at the trial no issue was framed as regards the under valuation of the suit. The learned Subordinate Judge, however, dismissed the suit on merits. The plaintiffs thereupon preferred an appeal before the District Judge of Shahabad. The memorandum of appeal was valued at Rs. 2,300, which was the valuation fixed in the Court below, and Court-fee was paid on this valuation upon the memorandum of appeal before the District Judge. Again no objection was taken by the defendant and the appeal was heard on its merits and the learned District Judge set aside the decree of the Subordinate Judge and decreed the suit. Against this decree the defendant has preferred this second appeal to this Court.

3. An objection was taken by the Stamp Reporter that the valuation of the suit was improperly fixed at Rs. 2,300 that the true valuation should have been at Rs. 5,500 as alleged by the plaintiffs themselves originally in their plaint, and that therefore the Court-fee payable on the memorandum of appeal to this Court as well as the Court-fees payable on the plaint and on the memorandum of appeal to the District Judge ought to have been upon the valuation of Rs. 5,500. He, therefore, reported that there was a deficiency in the Court-fee paid on the memorandum of appeal to this Court to the extent of Rs. 155 and that the plaint and the memo, of appeal to the District Judge were also insufficiently stamped by Rs. 155 each. The matter came for decision before the Taxing Officer and he held that the Court-fee payable on the memorandum of appeal to this Court was ad valorem on Rs. 5,500 which was the value of the property in dispute and he ordered the appellant to pay the deficit Court-fee of Rs. 155 which was duly paid by the appellant and the appeal registered. As regards the valuation of the plaint and the memo, of appeal to the Lower Court the Taxing Officer ordered that the same will be considered when the respondents appeared in the appeal. When the respondents entered appearance in this appeal, the matter was again brought before the Registrar and on the 2nd of December 1921 he allowed time to the plaintiff respondents up to the 13th of December to pay the deficit court-fee. No objection seems to have been taken by the plaintiff-respondents as regards the valuation and payment of the deficit court-fees. The respondents, however, did not pay the deficit court-fee as directed by the order of the 2nd of December 1921 and on the 15th of December 1921 an order was made by the Registrar to the effect that the question whether the plaint should be rejected should be determined by the Bench at the time the appeal came on for hearing. When the appeal came on for hearing before us the learned Vakil for the respondents raised no objection to the valuation, but paid the deficit court-fee of the plaint as well as the memorandum of appeal to the District Judge. This was accepted and the appeal was heard.

4. At the hearing of the appeal the learned Vakil for the appellant takes the objection that the valuation of the suit being now determined to be Rs. 5,500 the appeal to the District Judge was incompetent; that the decree made by the District Judge was without jurisdiction and is void. He relies on the Privy Council case of Ledgard v. Bull [1886] 9 All. 191: 13 I.A. 134: 4 Sar. 741 (P.C.) and also upon the case of Rajlakshmi Dassi v. Katyayani Dassi [1910] 38 Cal. 639: 12 I.C. 464. Now there can be no doubt that, having regard to the value of the properties forming the subject-matter of the suit as now fixed and accepted by the plaintiff respondents, the appeal to the learned District Judge was incompetent. The appeal against the decree of the Subordinate Judge lay to the High Court and not to the District Court. The question is whether the decree passed by the learned District Judge can be treated as a nullity. S. 99 of the Code of Civil Procedure provides.

No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

5. Here the jurisdiction of the Court of appeal below is affected by the alteration of the value of the suit. S. 11 of the Suits Valuation Act, however, provides that

Notwithstanding anything in section 99 of the Code of Civil Procedure an objection that by the overvaluation or under-valuation of a suit or appeal a Court of first instance or Lower Appellate Court which had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an appellate Court unless:

(a) the objection was taken in the Court of first instance at or before the hearing at which, issues were framed and recorded or in the Lower Appellate Court in the memorandum of appeal to the Court; or,

(b) the appellate Court is satisfied for reasons to be recorded by it in writing that the suit or appeal was over-valued or under-valued and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.

6. Sub-section 2 of Section 11 of the Suits Valuation Act provides

If the objection was taken in the manner mentioned in clause (a) of Sub-section (1) but the Appellate Court is not satisfied as to both the matter mentioned in clause (b) of that Sub-section and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the Appeal as if there had been no defect of jurisdiction in the Court of first instance or Lower Appellate Court.

7. Now, as I have indicated above, no objection as regards the valuation or jurisdiction of the Court was taken by the defendant either in the trial Court or in the Court of appeal below. The objection was taken for the first time in this Court by the Stamp Reporter. Moreover nothing has been shown by the defendant appellant before us that the under valuation of the suit and of the appeal to the District Judge has in any way prejudicially affected this disposal of the suit or of the appeal on its merits. In the case of Legard v. Bull [1886] 9 All. 191: 13 I.A. 134: 4 Sar. 741 (P.C.) objection as regards the jurisdiction of the Court was taken from the very beginning. It was taken before the Subordinate Judge and again before the District Judge and it was reiterated in the High Court, and their Lordship of the Privy Council referred to this matter and to the fact that the defendant in that case had done nothing to waive that objection since it was stated in the written statement in answer to the plaint and held that the Court had no jurisdiction to try the suit. In the case of Rajlakshmi Dassi v. Katyayani Dassi [1910] 38 Cal. 639: 12 I.C. 464 a decree was filed in evidence by one of the parties to the suit which was objected to by the other party on the ground of its being a nullity for the reason that it was passed by a Court which had no jurisdiction to pass it Their Lordships in that case held that the decree was fraudulently obtained on a deliberate under-valuation of the subject matter of the suit and that the Court which passed the decree had no jurisdiction to pass it and, therefore, it was a nullity and could not be used in evidence against the other party who was not a party to that decree. As to what the effect of that decree would have been between the parties to that decree their Lordships expressed no opinion. On page 668 of the report their Lordships observed:-

We are not called upon to consider what the effect of such lack of jurisdiction would be upon the decree in so far as the parties thereto were concerned. It is manifest that so far as a stranger to the decree is concerned , he can obviously ask for a declaration that the decree is a nullity because made by a Court which had no jurisdiction over the subject matter of the litigation.

8. The provisions of S. 11 of the Suits Valuation Act were not considered in the case of Rajlakshmi Dassi v. Katyayani Dassi [1910] 38 Cal. 639: 12 I.C. 464 and the case of Ledgard v. Bull [1886] 9 All. 191: 13 I.A. 134: 4 Sar. 741 (P.C.) was decided before the enactment of Suits Valuation Act of 1887. Having regard to the provisions of S. 11 of the Suits Valuation Act, I am of opinion that there being no proof of prejudice, the objection cannot be entertained that the decree of the learned District Judge is null and void for want of jurisdiction.

9. As regards the merits it appears that before the rent decree of the 26th of September, 1899, mentioned above, was passed the defendant's predecessors-in-interest had in the year 1893 obtained an ex-parte rent decree for arrears of rent due for a prior period. This ex-parte decree was subsequently set aside and the suit was restored and a fresh rent decree on contest was passed in favour of the defendant's predecessor-in-interest in the year 1898. Execution of this decree was taken out and the holding of the plaintiffs was sold on the 17th November 1900 and purchased by the decree-holder. Possession was delivered to the decree-holder auction purchaser on the 27th of February 1903. In the year 1910 a suit was brought by the predecessor-in-interest of the defendant against the present plaintiffs for possession and mesne profits of the holding on the ground that the plaintiffs had dispossessed the defendant's predecessor-in-interest from the said holding. Mesne profits were claimed for the year 1315 to 1317. This was suit No. 81 of 1910. This suit was referred to the arbitration of the present defendant. On the 2nd of December 1912 the present defendant as an arbitrator made an award to the effect that the present plaintiffs should be allowed to retain possession of the holding on payment of a sum of Rs. 1,400 on account of arrears of rent and mesne profits and a sum of Rs. 100 on account of costs. These two sums were apparently paid in due time and the plaintiffs continued in possession until they were dispossessed as a result of the sale held on the 2nd of December 1914 in execution of the decree of the 26th of September 1899 as mentioned above.

10. Two questions have been raised, first as to what was the effect of the purchase by the predecessor-in-interest of the defendant of the year 1900, and, secondly, what was the effect of the award of the 2nd of December 1912.

11. It is contended on behalf of the plaintiff respondents that the effect of the sale of the 17th of November 1900 was to extinguish the decree of the 26th of September 1899; and secondly, that by the award of the 2nd of December 1912, the sum of Rs. 1,400 was fixed to represent all sums on account of arrears of Tent and mesne profits outstanding up to that time and that by the payment of Rs 1,400 nothing remained due under the decree of the 26th of September 1899. The learned Subordinate Judge found these points in favour of the defendant and dismissed the suit. On appeal the learned District Judge has held that by the sale of the 17th of November 1900 the encumbrance on the property under the decree of the 26th of September 1899 was extinguished. He apparently relies on the provisions of S. 101 of the Transfer of Property Act, but, under that section, the charge will not be extinguished if the owner of the charge declares by express words or necessary implication that it should continue to subsist or such continuance would be for his benefit. The learned District Judge has not considered the evidence on this point.

12. As regards the second point, namely the effect of the award of the 2nd of December 1912 that also depends upon the evidence in the case, which has not been considered by the District Judge.

13. Under the circumstances we, in the ordinary course, would have remanded the case to the District Judge for a finding upon these two points upon the evidence, but having regard to the circumstances of the case and the valuation of the suit as now fixed, we consider it undesirable to make a remand to the District Judge. We, therefore, think it desirable that this Court should determine these points upon a consideration of the evidence in the case under the provisions of S. 103 of the Civil Procedure Code.

14. We, therefore, direct that this appeal do stand over for a month. The appellant should prepare either a type or a printed copy of all the evidence on the record bearing on these two points which he wishes this Court to consider. He should, within a week, give a list of all the documents and the evidence which he proposes to print to the Vakil for the respondents; and if the respondents' Vakil wishes to refer to any other document besides those included in the appellant's list he shall give notice thereof to the appellant's Vakil within three days of his receiving the appellant's list. The appellant will then print the papers which the respondents wish to print. The printed or typed copy of the papers should be filed by the appellant's Vakil in this Court on or before the 6th of August 1928.

Foster, J.

15. I agree.