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Malji S/O Kesooramji and ors. Vs. Kesrimal Rakhabdas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 188 of 1960
Judge
Reported inAIR1963MP206
ActsCourt-fees Act, 1870 - Sections 7
AppellantMalji S/O Kesooramji and ors.
RespondentKesrimal Rakhabdas and ors.
Advocates:G.M. Chaphekar, Adv.
DispositionPetition allowed
Cases ReferredVinayakrao v. Mankunwarbai
Excerpt:
- - chaphekar that the court below has failed to consider the real point of distinction as to when a person suing to obtain a declaration with reference to a decree ought to pay advalorern court-fee and when it is open for him to pay court-fee on his own valuation however arbitrary it may be. 9. in my opinion the contention raised by the learned counsel for the petitioners is well founded. 10. the decision, in air 1946 nag 251 is clearly distinguishable. 11. the other case 1957 mplj 406 :( (s) air 1957 mp 134) also is clearly distinguishableand in fact that decision supports the petitioners......the judgment. a permanent injunction was also asked for restraining kesrimal from executing his award-decree against gangaram and babulal with reference to the house under attachment. this suit was filed as one for declaration and permanent injunction and the plaintiffs valued the claim for the purpose of relief of permanent injunction at rs. 20/-. they valued the relief with regard to the declaration at rs. 11,000/- for the purpose of jurisdiction. fixed court-fee of rs. 20/- was paid as on a suit for declaration simpliciter.3. the defendants inter alia raised the contention that the court-fee paid by the plaintiffs-petitioners was inadequate. they ought to have paid advalorern court-fee on the total amount of claim in the award decree i.e. on rs. 11,000/-.4. this contention found.....
Judgment:
ORDER

1. This revision petition raises a question as regards the applicability of Section 7(iv)(c) of the Court Fees Act. Particularly it raises the question as to whether a person who is not bound by the decree can make his own valuation for claiming a permanent injunction with reference to the decree.

2. The facts necessary for the purpose of the present petition are as follows :

The petitioners filed a suit against Gangaram and Babulal respondents Nos. 2 and 3 for recovery of money. The suit was filed on 23-10-1954. An order for attachment before judgment in respect of the property of the defendants was passed and the property was attached. While the suit was pending Kesrimal makes a claim against his father-in-law and brother-in-law viz. Gangaram and Babulal to the tune of Rs. 11,000/-. A reference is made by mutual agreement between the parties and an award is passed on 22-10-1954 creating a charge upon the house which was later on attached a day after.

It may be mentioned here that according to the petitioners who were the plaintiffs in the suit filed by them against Gangaram and Babulal they had given notices to their debtors for recovery of their debts. Proceedings were taken subsequentto the passing of the award for making it the rule of the Court and on 5-11-1954 a decree on the basis of the award was obtained. This decree was put into execution by Kesrimal against his father-in-law Gangaram and brother-in-law Babulal and he sought to sell the house which was already charged under the decree on the basis of the award. A date was fixed for the sale of the property which was 27-6-1956.

The petitioners thereupon filed the present suit impleading Kesrimal, Gangaram and Babulal for a declaration that the decree obtained by Kesrimal against Gangaram and Babulal on the basis of the award was collusive and sham and was not binding upon the plaintiff nor did it affect the attachment effected by him in his suit before the judgment. A permanent injunction was also asked for restraining Kesrimal from executing his award-decree against Gangaram and Babulal with reference to the house under attachment. This suit was filed as one for declaration and permanent injunction and the plaintiffs valued the claim for the purpose of relief of permanent injunction at Rs. 20/-. They valued the relief with regard to the declaration at Rs. 11,000/- for the purpose of jurisdiction. Fixed court-fee of Rs. 20/- was paid as on a suit for declaration simpliciter.

3. The defendants inter alia raised the contention that the court-fee paid by the plaintiffs-petitioners was inadequate. They ought to have paid advalorern court-fee on the total amount of claim in the award decree i.e. on Rs. 11,000/-.

4. This contention found favour with the trial Court who directed the petitioners to pay advalorern court-fee on Rs. 11,000/-. The learned trial Court relied upon the decisions reported in Kisanlal v. Narayandas, AIR 1946 Nag 251 and Nageshwar Shriniwas v. Chandmal Rupchand, 1957 MP LJ 406 : ( (S) AIR 1957 MP 134) in support of the view taken by him.

5. The present revision petition is directed against that order.

6. The defendants-opponents have not appeared to contest this petition.

7. It is contended on behalf of the petitioner by Mr. Chaphekar that the Court below has failed to consider the real point of distinction as to when a person suing to Obtain a declaration with reference to a decree ought to pay advalorern court-fee and when it is open for him to pay court-fee on his own valuation however arbitrary it may be. The learned counsel relied upon the observations of this Court in Vinayakrao v. Mankunwarbai, AIR 1943 Nag 70. It was contended that having regard to the provision of Section 7(iv)(c) of the Court Fees Act where the plaintiff sues for declaration and permanent injunction three courses are open to him :

(i) He can sue for mere injunction without asking for any declaration;

(ii) He can sue for a declaration of a right and injunction as a consequential relief;

(iii) He can sue for a declaration and injunction independently;

and it is a question of construction of the plaint in each case under which category it falls.

8. In the present case, according to thelearned counsel, at the most it can be said thatthe present suit falls under the category (iii). Inthat case it will be open for him to make anyvaluation he pleases and to pay court-fees accordingly. It was pointed out that the present case can properly be construed to be one under Section 7(iv)(c)and in that case also the consequential relief canbe valued by him at his choice. If that is accepted as the correct position then he, in fact, hasover-paid the court-fees. In any case, it is urged,since the plaintiffs were not parties to the award-decree nor are they representatives of the partiesthey are not bound by the decree and as such itis not necessary for them to seek the cancellationof the decree. As third parties it is open for themto claim an injunction without suing to set asidethe decree which can properly stand between theparties. Viewed from this point of view, it isurged their prayer cannot be construed to be aprayer in effect for cancellation of the decree-The order for payment of advalorem court-fee,under the circumstances, is not proper. Since theCourt below, it is pointed out, has directed topay advalorern court-fee it has refused to exercisejurisdiction vested in it by law and for that reasonthe present revision petition is competent. Thelearned counsel relied upon the decision in AIR1943 Nag 70, referred to above as also the observations of Dixit, J., (as he then was) in the casereported in 1957 MP LJ 406 : ( (S) AIR 1957 MP134) on which the Court below has relied uponfor the view taken by it.

9. In my opinion the contention raised by the learned counsel for the petitioners is well founded. The facts in this case are clear enough. Ten days before the petitioners filed their suit against the opponents Nos. 2 and 3 a notice was given to them for making the payment. One day before the filing of the suit they rushed and obtained an award charging their house for payment of the amount included in the award. The party in whose favour the award is made is no other than their near relation viz. the son-in-law or Gangaram. A decree was later obtained on the basis of the award and it is this decree that was put into execution for effecting the sale of the house. The petitioners are in no way parties to this award-decree nor can they be held bound by the said decree. They, having secured an order for attachment before judgment in respect of the property covered by the award, possessed sufficient interest for seeking a declaration that the decree obtained by respondent No. 1 Kesrimal against Gangararn and Babulal under an award is not binding upon them so as to affect their right to proceed with the sale of the house in respect of which an order for attachment had already been secured on the ground that the said award decree had been obtained by collusion. By claiming such a declaration they are not seeking cancellation of the decree, no is it necessary for them to do so. Such a claim for declaration therefore from the very nature will not involve a claim for cancellation of the decree. The relief of permanent injunction, under these circumstances, is a relief consequent upon the relief as to the declaration and can properly be called a consequential relief within the meaning of the terms as used in Section 7(iv)(c) of the Court Fees Act.Section 7(iv)(c) of the Court Fees Act is as follows :

'The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :

..... (iv) In suits :

..... (c) to obtain a declaratory decree or order, where consequential relief is prayed,

..... In all such suits the plaintiff shall state the amount at which he values the relief sought.'

The consequential relief in the present case has been valued by the plaintiff at Rs. 20/-. If then the case can properly fall tinder Section 7(iv)(c) of the Court Fees Act it cannot be disputed that the Court-fee paid is sufficient.

10. The decision, in AIR 1946 Nag 251 is clearly distinguishable. In that case a suit, for a declaration that the decree passed by a certain Court was null and void was filed by the person who was a party to the decree. The declaration of that sort was asked for on the ground that theCourt had no jurisdiction and that the defendanthad got the controversy determined by mis-representing facts. It was held, on the construction of the plaint filed in that case, that the plaintiffs'claim in substance was one for setting aside the decree or for its cancellation. In that view of the matter it was held that the case fell under Section 7(iv)(c) of the Court Fees Act and that the consequential relief should have, been valued to the extent of the decree sought to be declared null and void.

11. The other case 1957 MPLJ 406 : ( (S) AIR 1957 MP 134) also is clearly distinguishableand in fact that decision supports the petitioners. The learned Judge, who decided that case, quoted with approval the observations of Bose, J., in the decision reported in AIR 1943 Nag 70 to the effect :-

'Ordinarily a decree only binds parties andprivies. One who is not a party and who does not claim through the judgment-debtor is not bound and if he is not bound it is not necessary for him to get the decree modified or set aside in order to protect his interest.'

12. In both these cases the learned Judges had to deal with cases in which the plaintiff could be treated as bound by the decree. In that view of the matter the cases have no application.

13. Thus it is clear that both the decisionsrelied upon by the Court below are inapplicable to the facts of the present case.

14. On the other hand the observations in AIR 1943 Nag 70 as also in 1957 MPLJ 406 : ( (S) AIR 1957 MP 134) go to support the contention raised on behalf of the petitioners that advalorem court-fee on the amount of the decree need not be paid by the present plaintiffs.

15. There is certainly a view that for the purpose of Court-fees what one has to look to is the frame of the suit and the nature of relief that is asked for.

16. The petition, therefore is allowed and the order passed by the Court below is set asideand it is held that the Court-fee paid in this case is adequate. The trial Court shall proceed with the case from the stage at which it was when the impugned order was passed.

17. The petitioners will be entitled to the costs of this petition from the opposite party.


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