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Jadaun Rai Vs. Gulzarimal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Judge
Reported in(1880)ILR2All63
AppellantJadaun Rai
RespondentGulzarimal
Excerpt:
suit for a declaration of right to set aside an order under section 246 of act viii of 1859 disallowing a claim to property under attachment--act viii of 1870 (court fees act), section 7. (iii), and schedule ii, 17--consequential relief. - - 422. we do not think that in a suit like the one before us it is imperative that the court-fee should be according to the value of the property......motichand jaichand v. dadabhai pestanji 11 bom. h.c. rep. a.c.j. 186 does not apply, as there the plaint included a claim for possession. nor does the ruling of the madras court in chakalingapeshana naicker v. achiyar i.l.r. 1 mad. 40 apply, for there the main object of the suit was held to be the recovery of possession of certain lands of which the plaintiff had been out of possession for years. we are not prepared to follow the decision of the calcutta court in mufti jalaluddin mahomed v. shohorullah 15 b.l.r. ap. 1 : s.c. 22 w.r. 422. we do not think that in a suit like the one before us it is imperative that the court-fee should be according to the value of the property. when the suit was brought the property was under attachment, and as it is part of the claim of the plaintiff that.....
Judgment:

Spankie, J.

1. We are of opinion that the plaintiff was at liberty to sue for a declaratory decree to establish his right to the property attached; a stamp of Rs. 10 was sufficient for this purpose. But the plaintiff also paid Rs. 10 besides, i.e., Rs. 20 on the whole plaint, inasmuch as he sued also to set aside the miscellaneous order against him. In each of the two claims a ten rupee stamp is sufficient under the Court Fees Act. The Bombay case cited, Motichand Jaichand v. Dadabhai Pestanji 11 Bom. H.C. Rep. A.C.J. 186 does not apply, as there the plaint included a claim for possession. Nor does the ruling of the Madras Court in Chakalingapeshana Naicker v. Achiyar I.L.R. 1 Mad. 40 apply, for there the main object of the suit was held to be the recovery of possession of certain lands of which the plaintiff had been out of possession for years. We are not prepared to follow the decision of the Calcutta Court in Mufti Jalaluddin Mahomed v. Shohorullah 15 B.L.R. Ap. 1 : S.C. 22 W.R. 422. We do not think that in a suit like the one before us it is imperative that the court-fee should be according to the value of the property. When the suit was brought the property was under attachment, and as it is part of the claim of the plaintiff that it was in his possession when attached, he was not under any necessity of asking for more relief than the circumstances of the case required. That relief was confined to a simple declaration of title and the setting aside of the order of the Munsif in the execution department by removal of the attachment, both requirements being included in Schedule ii, Article 17 of the Court Fees Act. No ruling of this Court antagonistic to the view now taken has been cited, we therefore overrule appellant's objection on this point. (The learned Judge then proceeded to dispose of the other pleas in appeal.)


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