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Bommarasegowda Vs. B.T. Gundappa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 456 of 1953
Judge
Reported inAIR1954Kant121; AIR1954Mys121
ActsMysore Court-fees Act, 1900 - Schedule - Article 1A; Mysore Court-fees (Amendment) Act, 1952; Mysore Agriculturists Relief Act, 1928 - Sections 23; Court-fees Act, 1870 - Sections 17 - Schedule - Article 2
AppellantBommarasegowda
RespondentB.T. Gundappa
Advocates:S. Krishnappa, Adv.
Excerpt:
- code of civil procedure, 1908. order 21, rule 46: [s.r. bannurmath & jawad rahim, jj] application under -attachment and prohibitory order for disbursement of the amount in rfd account of the judgment debtor maintained by the appellant bank order passed by the executing court held, order 21, rule 46a provides that the courts may in case of a debt, which has been attached under rule 46, upon the application of the attaching creditor, issue notice to the garnishee liable to pay such debt, calling upon him either to pay into court the debt due so as to satisfy the decree in question. the appellant is a garnishee of the judgment debtor is not in dispute. the executing court was justified in passing the impugned order. it is to be noted that mere prohibition under karnataka co-operative..........act, court-fee was to be separately assessed on each item and on this basis payment at the lower rate prescribed for rs. 400/- was sufficient, since'the test in such cases is what is the amount that would be payable had separate plaints been filed for each of the several distinct claims, all of which the suit embraces.' this is not a case of clubbing together or consolidating two or more claims but a single claim and the suit for enforcement of this cannot be a small cause for one purpose and original for another. when the procedure & incidents of an original suit not provided for in a small cause case are all applicable to the suit, the plaintiff cannot escape liability to pay the court-fee at the rate prescribed for an original suit. we are unable to agree with the view expressed in.....
Judgment:
ORDER

1. This case has been referred to a Division Bench by my learned brother for decision of the court-fee payable in a suit triable by the Court of Small Causes, if the amount and nature of the claim are alone taken into account but which was sought to be and has been registered as an original suit. The suit is for recovery of Rs. 81-1-0 in respect of a loan and maintainable in the Small Cause Court, but for the defendant being alleged to be an agriculturist and the longer period of limitation provided for in the Mysore Agriculturists' Relief Act for such a suit being, availed of. Section 23 of the said Act states that every suit under the Act shall be tried as an original suit.

2. In view of Act 18 of 1952 -- The Mysore Court-fee Amendment Act -- there is a difference in the court-fee payable in suits of Small Causes and Original Suits, the scale prescribed for the former being less under Article 1 (a). To have the benefit of this, the suit must be of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter does not exceed Rs. 500/-. The word 'cognizable' is not defined but cognizance is explained in Law Lexicon of Ramanath Iyer to mean jurisdiction or right to try and determine causes: 'the right to take notice of and determine a cause'. The suit being one filed under the Agriculturists' Relief Act, and Section 23 being mandatory in requiring it to be tried as an original suit cannot be said to be cognizable in the Court of Small Causes as it has no jurisdiction to deal with it.

3. In support of the contention that only the Court fee prescribed for a suit of Small Cause nature is due the case in -- '31 Mys LJ 147 (A)' has been cited on behalf of the plaintiff. It is expressed in that case that for the application of the amended article what is material is the nature and quantum of the claim and not the Court in which the suit is to be filed. For this reference is made to -- 'Secy. of State v. Ayyasami Chettiar' : AIR1933Mad178 , where the question was whether in a suit for two sums of Rs. 600/- and Rs. 400/- Court fee was to be paid separately on each or on the total amount. It was held that by virtue of Section 17 of the Court-fees Act, court-fee was to be separately assessed on each item and on this basis payment at the lower rate prescribed for Rs. 400/- was sufficient, since

'the test in such cases is what is the amount that would be payable had separate plaints been filed for each of the several distinct claims, all of which the suit embraces.'

This is not a case of clubbing together or consolidating two or more claims but a single claim and the suit for enforcement of this cannot be a small cause for one purpose and original for another.

When the procedure & incidents of an original suit not provided for in a small cause case are all applicable to the suit, the plaintiff cannot escape liability to pay the court-fee at the rate prescribed for an original suit. We are unable to agree with the view expressed in -- '31 Mys LJ 147 (A)' that a case such as this is governed by Art. Ha), Court-fees Act.

4. The order of the lower Court directing payment at the rate prescribed for an original suit is correct. The petition is dismissed. No costs.

5. Petition dismissed.


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