Meredith, J.This matter has been referred to me as Taxing Judge u/s 5, Court-fees Act. It arises out of an appeal from a final decree in a mortgage suit in which the appellants were defendants. They have filed the appeal without any court-fee on the ground that nothing more is payable in view of the fact that full ad valorem court-fees were paid on the appeal from the preliminary decree. In the appeal from the preliminary decree, all they succeeded in obtaining was a reduction of interest. In the present appeal the entire final decree is attacked. u/s 97, Civil P.C. which was introduced in 1908, where any party aggrieved by a preliminary decree does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Therefore, under the law as it now stands, a party is forced to appeal from the preliminary decree, and cannot wait to attack it in a single appeal after and from a final decree. Clearly a party cannot attack the final decree upon grounds which he has urged unsuccessfully in the appeal against the preliminary decree. But, in the present case, an attack is made upon the whole final decree upon new grounds, by reason of things alleged to have happened between the preliminary decree and the final decree, namely, failure to make substitution upon the death of a party, leading to an alleged abatement, and the alleged presentation of the application for final decree to a wrong Court. The argument put forward for the appellants is that the law never contemplated that ad valorem court-fees should be paid twice over. Therefore, no court-fee at all need be paid. Secondly, if any court-fee is payable, it can only be on the difference between the valuation of the preliminary appeal and the final appeal, the sum due having of course increased in the interval owing to the accumulation of interest. It has further been argued on behalf of the appellants, but not very strenuously, that the appeal should be treated as an appeal from an order, and so court-fees, if payable, should be the fixed court-fees payable under Schedule II, Article 11, Court-fees Act, upon a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. In the alternative, court-fees should be assessed under Schedule II, Article 17(vi) as upon a memorandum of appeal where it is not possible to estimate at a money value the subject-matter in dispute, which is not otherwise provided for in the Court-fees Act.

2. The last two points may be dealt with very briefly. There is no difficulty at all in estimating at a money value the subject-matter in dispute in the appeal. As the appeal attacks the entire decree and asserts that no final decree can be passed, the value to the appellants is the amount of the final decree. The case which is relied upon Durga Prasad v. Sri Niwas Surekha AIR 1934 Pat. 473 even if correct, which has been doubted, has no application. It was a case where the only point in dispute was whether there should be a decree for sale, or for foreclosure, and the learned Taxing Judge took the view that the difference could hot be estimated in money.

3. As to the contention that the appeal is from an order not having the force of a decree, this cannot be entertained for one moment. Section 2, Civil P.C., expressly provides that a decree may be either preliminary or final, and the test of a final decree is whether it is an adjudication completely disposing of the suit. Section 97, moreover, makes it quite clear that there can be separate appeals both from the preliminary decree and from the final decree. The contention has been based merely upon a single case, Ranga Raju v. Ethirajammal AIR 1930 Mad. 20 , which has been subsequently dissented from even in the Madras High Court, in Ramchandra Rao v. Rattayya AIR 1934 Mad. 198 , and is not in accord with the view of any of the other High Courts. The point is so well-settled and there are so many decisions that it is not necessary to cite them. I shall refer to only one, the Full Bench case of the Allahabad High Court, Bajrangi Lal v. Mahabir Kunwar (13) 35 All. 476 where it was pointed out that the Legislature had deliberately altered the words "order absolute" and replaced them by the words "final decree", and it was laid down that an appeal from a final decree passed under Order 34, Rule 5, Civil P.C., requires an ad valorem court-fee, and cannot be stamped as an appeal from an order.

4. The contention that no court-fee at all is payable also merits no serious consideration. u/s 4, Court-fees Act, no document of any of the kinds specified in the Schedules 1 and 2 (which includes, of course, a memorandum of appeal), as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by any of the said High Court...in the exercise of its jurisdiction as regards appeals from the Courts subordinate to its superintendence, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. Schedule I, Article 1, covers a case like the present, namely, a memorandum of appeal not otherwise provided for in the Act, and provides for ad valorem court-fees.

5. There remains the question whether the appellants should be given credit for the amount already paid upon the preliminary appeal. It is argued that it is a hardship, and the law could not have contemplated, that the appellant in defending a single suit should have to pay ad valorem court-fees twice over. I do not myself see the hardship. The court-fee is paid for the decision of the Court. Court-fees have to be paid separately upon a first appeal and a second appeal. If that is no hardship, why is it a hardship to pay separate court-fees for two separate decisions upon separate points by the same Court. The subject-matter of the two appeals is entirely different, and must necessarily be entirely different, since the same point cannot be agitated in the preliminary appeal and in the final appeal. It can only be in rare and exceptional cases that it will be possible to challenge the entire decree in the final appeal, since in the main the rights of the parties will have been determined in the preliminary appeal, and all that will be left for the final appeal in most cases will be subsidiary points, which do not involve a challenge to the entire decree, and consequently will not necessitate the payment of full ad valorem court-fees. A case like the present is and must be unusual.

6. Apart from all this, however, ethical considerations do not really enter into the picture. It is a question merely of construing the Court-fees Act. I have already shown that under the Court-fees Act ad valorem court fees are payable upon an appeal from the final decree in a mortgage suit, and that is settled by numerous decisions. If, therefore, for any reason the appellants can claim any credit or exemption from any portion of the fee it can only be by reason of some provision in the Court-fees Act. A complete search of the Act fails to reveal any provision for such a case. In Section 19 of the Act a number of documents are set out, which shall not be chargeable with any fee, but no document is included of the kind with which we are here concerned. Section 35 of the Act provides that the Local Government may reduce or remit in the whole or in any part all or any of the fees mentioned in the first and second schedules, but the Local Government has made no provision u/s 35 for cases like the present. The appellants rely upon a number of decisions relating to account suits and claims for mesne profits. Such cases are Kanchan Mandar v. Kamala Prosad Chowdhury (12) 16 Cri.L.J. 564 In re Supputhayammal AIR 1932 Mad. 453, Niras Rai v. Jagrup Singh (16) 1 P.L.W. 15 Ram Mander v. Maharani Nawlakhbati AIR 1924 Pat. 694 , Dhanukhdhari Prasad v. Ramadhikari AIR 1933 Pat. 81 Kanti Chandra Tarafdar and Another Vs. Radha Raman Sirkar and Others, .

7. It is unnecessary to deal with these decisions in detail because there is no analogy between the two types of cases. In account suits and mesne profits cases, the amount due is not decided by the preliminary decree, The decree provides only that the amount [is liable to be ascertained. Though the law provides that court-fees upon the preliminary appeal must be paid upon the plaintiffs estimate of the amount, that is, as it were, only provisional and by way of anticipation. The actual court-fee payable can be finally determined only later, and in the case of the plaintiff the balance will have to be made up u/s 11, Court-fees Act, before he can execute. It is, therefore, only reasonable that it should be the balance that the defendant must make up in his appeal from the final decree. It is the final decree which settles the actual liabilities, and not the preliminary decree, whereas in mortgage suits it is the preliminary decree which really settles the liabilities, and the final decree is substantially merely a postponement of the final order of the Court to give the defendant a chance to pay. The complete difference of the two classes of cases is emphasised by the fact that they come under different provisions of the Court-fees Act. Mortgage suits fall u/s 7(i), whereas account suits are separately provided for u/s 7(iv)(f). The principles applicable to the one type of case are not applicable to the other: see Damodar Padhano v. Haribhandhu Patnaick AIR 1921 Mad. 406 . In account suits there can be one joint appeal against the preliminary and final decree. That is not the case in mortgage suits. Budhu Ram v. Niamat Rai AIR 1923 Lah. 632 was a redemption suit. In such a suit also, the principles applicable are not those applicable to suits for sale. Redemption suits and foreclosure suits are separately provided for in Section 7(ix), Court-fees Act. Assuming, without expressing the opinion, that this decision is correct, the ratio decidendi was that the final decree was a mere corollary to the preliminary decree, and followed it as a matter of course. There was nothing fresh for the Court to decide before it passed the final decree, and the appeal from that decree was really of a formal nature and did not contest anything beyond what was contested in the appeal from the preliminary decree. In short, the appeal from the final decree was unnecessary and a superfluity, because had the appeal against the preliminary decree succeeded, the final decree would have lapsed automatically, just as indeed it does in the case of a suit for sale upon a mortgage: see Shadi Lal Vs. Jagdamba Sahai and Others, . Such considerations have no place in a case like the present.

8. The contention put forward must be rejected and the appellants must pay the ad valorem court-fees upon the sum of Rs. 88,419-12-0 namely, Rs. 2,559-60 as required by the stamp report. They request and are allowed three months from the date of this judgment in order to pay.