1. This revision arises out of an order of the Subordinate Judge, Warangal, in I. A. 305 of 1966 in O. S. 66 of 1965, directing the plaintiff-petitioner to pay court-fee on the two reliefs claimed one for cancellation of the decree in O. S. 52/56 and the other, for possession of the property, which formed the subject-matter of the compromise decree.
2. Mr. Madhava Rao, the learned counsel appearing for the petitioner contended that the relief of possession is only ancillary and that in the event of the compromise decree being cancelled or set aside the petitioner would automatically get possession of the property and therefore court-fee is not payable separately for the relief of possession.
3. Indisputably, the petitioner has prayed for cancellation of the compromise decree and if that is cancelled, it would restore his possession of the property. Therefore the relief of possession asked for is only ancillary or consequential. Madhavan Nair, J., in Thangachi Ammal v. Moideen Maricair, II.R 56 Mad 401 = AIR 1933 Mad 231 (2), a case where a vendor asked for setting aside a sale deed and for recovery of possession of the property covered by the deed, held that it is enough if the plaintiff pays court-fee regarding the relief of cancellation of the deed and need not pay separate court-fee; for the claim regarding possession is only ancillary to the main claim.
4. That was a decision rendered under Section 7, Clause (iv) (a) of the old Act, corresponding to Section 37 of the Andhra Court-Fees Act. Therefore it would be sufficient if court-fee is paid in respect of the relief of cancellation of the decree and no separate court-fee is payable for the ancillary relief of possession.
5. The next question that arises for consideration is what is the fee payable on the value of the subject-matter of the suit. In a suit for setting aside a compromise decree, the plaint has to be valued on the market value of the property that formed the subject-matter of the compromise decree and not on the valuation given by the plaintiff in the suit in which the compromise decree was passed (vide Kothandarama v. Chokkammal, : AIR1950Mad458 ).
6. Therefore, the lower Court will ascertain the market value of the property and if it exceeds the pecuniary jurisdiction of the Court below, the plaint shall be returned for presentation to the proper Court.
7. The order of the Subordinate Judge is set aside and the revision allowed accordingly. No costs.