1. The point is a short one and arises out of a question raised about the proper court-fee to be payable by the plaintiff who is the petitioner.
2. The plaintiff obtained a decree against the second defendant for a considerable sum of money and in execution attempted to attach certain properties. The first defendant, the wife of the second defendant, filed a petition under Order 21, Rule 58, Civil Procedure Code, objecting on the ground that the said properties had been assigned to her by her husband in 1939 and that she was in possession thereof. The Court by order dated 24th June, 1944, upheld her claim and referred the plaintiff-decree-holder to a regular suit under Order 21, Rule 63.
3. The plaintiff duly filed the suit claiming that the order should be set aside in the interests both of the plaintiff and the other creditors. The final prayer was for setting aside the order and declaring that a mortgage dated 1933 and the deed of assignment dated 1939 are void as against the plaintiff and all other creditors of the second defendant. When the matter came before the Subordinate Judge in whose Court the suit had been filed he came to the conclusion, at whose instance is not apparent, that the suit was not merely a claim to have the order set aside but was in substance one for a declaration in favour of the plaintiff representing herself and all the other creditors. He therefore held that it came under Article 17-A of Schedule II of the Court-Fees Act and not under Article 17(i) simpliciter. It is difficult to see how Article 17-A which is a Madras Amendment can apply at all. I am, however, satisfied on reading the plaint and having regard to the authorities which have been cited to me, that substantially this was not a suit for a declaration merely but for the setting aside of the order, the declaration asked for being merely a relief without which the setting aside of the order would be of little, if any, value to the plaintiff. The Privy Council in Phul Kumari v. Ghanshyam Misra (1907) 17 M.L.J. 618 : L.R. 35 IndAp 22 : I.L.R. 35 Cal. 202 (P.C.) have made it clear that it is the substance of the matter which must be regarded. The fact that to the claim to set aside such an order is added some other relief does not necessarily affect the substantial character of the suit. In Arumugha v. Venkatachala Pillai (1932) 64 M.L.J. 568 : I.L.R. 56 Mad 716 for example, the plaintiff prayed (1) to cancel an order, (2)'to declare his title to a property, (3) to raise an attachment, and (4) for an injunction, nevertheless, Krishnan Pandalai, J., at page 717 says:
It will be observed that, although the plaintiff made four prayers, the substance of the whole matter was that his property had been illegally attached and he wanted that to be avoided; all else was mere words.
Now here the plaintiff had failed to attach by reason of an alleged bogus claim put forward by this woman. The plaintiff wants her attachment to become effective again and it cannot be held to be effective in any way if the bogus claim is still there in the background. It was necessary therefore for her to make clear what she was asking for by adding the subsidiary prayer for a declaration to the effect that the first defendant should not hereafter be able to re-assert her claim to this property in any execution proceedings.
4. I think this petition should be allowed and I hold that the appropriate Article is Article 17(i) and that the fee paid by the plaintiff is correct. The additional fee will be returned. As I have said it is not clear at whose instance this court-fee point was taken, and so I do not in the circumstances make any order as to costs.