1. The office has raised the objection regarding the amount of court fees which is to be paid by the appellant in this appeal. The appeal is filed against the decree of the District Judge's Court, Warangal, in O.S. No. 6 of 1957. The appellant herein was added as the second defendant in the suit. Later the plaintiff filed a memo in the trial Court giving up his claim against the appellant. But the decree of the trial Court covers the properties which are in the possession of the appellant.
2. The appellant has paid the fixed court-fee of O. S. Rs. 100/- under Article 13, Schedule II of the Hyderabad Court Fees Act and has valued the appeal as was done in the suit. It is submitted by the office that the appeal should be valued at the amount by which the appellant will be benefited and ad valorem court-fee should be paid, because the decree has directed the plaintiff to pay court-fee of Rs. 1484.95 Ps.
3. The objection raised by the office is not tenable Art 13. Schedule II of the Hyderabad Court Fees Act reads as follows :
Article 13, Schedule II.
Plaint or memorandum of appeal in When the plaint is presented to or Memorandum of
every suit when it is not possible to appeal is against the decree of-
estimate the money value and which
is not otherwise provided for by this Act. (a) A Munsiff's Court .. Rs. Fifteen.
(b) A District Court or a Sub-Court or the High
Court in exercise of its original jurisdiction ..
Rupees One Hundred.
4. There is no provision in the Hyderabad Court Fees Act regarding the court-fees which should be paid in a suit for partition. A close examination of the provision would show that the court-fees payable on the plaint or memorandum of appeal in 'every suit' where it is not possible to estimate the money value of the subject matter, a fixed court-fee is payable. A suit for partition comes within the ambit of the said provision. As appeal arising out of such a suit will be governed by the same provision. It is immaterial, for purposes of valuation in appeal, as to whether the trial Court has fixed the value of the property which is the subject-matter of the partition suit. The language employed in Art. 13 of Schedule II of the Hyderabad Court Fees Act is analogous to that of Ar. 17-B, Schedule II of the Madras Court Fees Act. In a case arising under the Madras Court Fees Act as some what similar question was considered by Umamaheswaram ,J., in Damisetti Satyanarayana Murthi v. Mamisetti Bhavanna. (1957) 2 Andh WR 3 = (AIR 1957 Andh Pra 766). The learned Judge held that Art. 17-B, Schedule II of the Madras Court Fees Act is applicable and a fixed court-fee of Rupees 100/- is sufficient.
5. Hence the court-fees of Rs. 100 paid by the appellant in sufficient.
6. Order accordingly.