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Samdu Khan Vs. Madanlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Ex. First Appeal No. 8 of 1958
Judge
Reported inAIR1959Raj101
ActsSuits Valuation Act, 1887 - Sections 8 and 11; Court-fees Act, 1870 - Sections 7; Rajasthan Civil Courts Ordinance - Sections 21
AppellantSamdu Khan
RespondentMadanlal
Appellant Advocate J.S. Chordia, Adv.
Respondent Advocate Gumanmal, Adv.
Cases ReferredB) and Mahomed Abdul Majid v. Ala Bux
Excerpt:
- .....is to be taken to be correct for purposes of the levy of the court-fees. by section 8 of the suits valuation act, this valuation is also taken to be the valuation for purposes of jurisdiction. section 11 provides for the levy of the extra court-fees in case the amount decreed is higher, but does not touch the valuation of the suit for purposes of jurisdiction. many of the cases cited are 'referred to in ilr 40 mad 1 : (air 1918 mad 998(2)) (fb) and it is not necessary to repeat the arguments which induced the madras high court to hold that the valuation for purposes of jurisdiction and appeal is the valuation made by the plaintiff in the trial court. we are, therefore, of opinion that the appeal in the present case lay to the district judge. 8. the memorandum of appeal will be.....
Judgment:

K.L. Bapna, AG. C.J.

1. This is an appeal in execution proceedings. The respondent Madanlal instituted a suit for dissolution of partnership and rendition of accounts in the court of Civil Judge, Merta. He valued the suit at Rs. 5,250/- and paid court-fee on that valuation according to Section 7 (iv) (f) of the Court-fees Act. A preliminary decree was passed on 31st of January, 1957. An appeal was filed to the High Court by the defendant, but as reported in Samdu Khan v. Madanlal, 1957 Raj LW 464 : (AIR 1958 Raj 62, it was decided by the Full Bench that the appeal lay to the District Judge. The appeal was consequently submitted to the District Judge and it is said to be pending.

2. As it happened, further proceedings continued in the trial court and a final decree was passed on the 16th of November, 1957 in which the defendant Samdukhan was held liable to pay Rs. 67,089/14/- to Madanlal as a result of the accounting between the parties. The defendant filed an appeal against this final decree in the court of the District Judge, Merta. It is admitted that that appeal was rejected for non-payment of court-fees and an appeal against that order is now pending in this Court.

3. Madanlal put his decree in execution and certain objections were raised by the judgment-debtor. These objections were disallowed by the Civil Judge of Merta on 3rd of March, 1958. The defendant judgment-debtor has filed the present appeal.

4. On behalf of the respondent, a preliminary objection was taken that the appeal did not lie to this Court, but should have been filed in the court of the District Judge.

5. An appeal against an order in execution proceedings lies to the court to which an appeal would lie against the decree in the original suit.

6. Learned counsel for the appellant contends that the valuation of the suit as made by the plaintiff should only be considered to be tentative and the real valuation of the suit for purposes of jurisdiction is the amount which had been finally adjudged to be due to the plaintiff from the defendant. As a corollary to this argument, it is contended that the valuation of the original suit should be deemed to be Rs. 67,089/14/- Reliance as placed on Ijjatulla Bhuyan v. Chandra Mohan Banerjee, ILR 34 Cal 954, Kalu Ram v. Hanwant Ram, AIR 1934 Lah 488 (FB), Ibrahimji Issaji v. Bejanji Jamsedji, ILR 20 Bom 265.

On behalf of the respondent, it is urged that the view taken in these cases is not correct and that the other view taken in Putta Kannayya Chetti v. R. Venkata Narasayya ILR 40 Mad 1 : (AIR 1918 Mad 998 (2)) (FB) and Mahomed Abdul Majid v. Ala Bux, AIR 1925 All 376 should be taken to be the correct view. After consideration of all the authorities that have been cited, it appears to us that the view taken in ILR 40 Mad 1 : (AIR 1918 Mad 998 (2)) (FB), is the one we should adopt. The forum of appeal is mentioned in Section 21 of the Rajasthan Civil Courts Ordinance. The relevant portion is as follows : --

'(1) Save as aforesaid an appeal from a decree or order of a Civil Judge shall lie : --

(a) to the District Judge where the value of the original suit in which, or in any proceeding arising out of which, the decree or order was made did not exceed ten thousand rupees, and

(b) to the High Court in any other case.'

7. The section speaks of the valuation of the original suit and the appeal is not at all made to be dependent on the amount of the decree that may be passed in such suits. The Calcutta, Bombay and the Lahore view proceed on an assumption that the value fixed by the plaintiff is only tentative or provisional. Section 7 (iv) (f) does not mention that this is tentative or provisional. What it says is that the valuation can be fixed by the plaintiff according to what he likes and that valuation is to be taken to be correct for purposes of the levy of the court-fees.

By Section 8 of the Suits Valuation Act, this valuation is also taken to be the valuation for purposes of jurisdiction. Section 11 provides for the levy of the extra court-fees in case the amount decreed is higher, but does not touch the valuation of the suit for purposes of jurisdiction. Many of the cases cited are 'referred to in ILR 40 Mad 1 : (AIR 1918 Mad 998(2)) (FB) and it is not necessary to repeat the arguments which induced the Madras High Court to hold that the valuation for purposes of jurisdiction and appeal is the valuation made by the plaintiff in the trial court. We are, therefore, of opinion that the appeal in the present case lay to the District Judge.

8. The memorandum of appeal will be returned to the plaintiff for presentation in proper court. The appellant will pay costs to the respondent.


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