1. The essential facts leading to this revision petition are that a suit on a promissory note was brought against the makers and also against the present petitioner, in whose favour the note had been executed and by whom it had been endorsed to the plaintiffs in that suit for consideration. A decree was obtained against the makers and also against the petitioner and his two sons. In execution of that decree some of the petitioner's property was sold and he eventually brought a suit in the District Judge's Court at West Godavari for a declaration that the decree was not executable against him and for consequential relief in the shape of setting aside the execution sales already held together with an injunction preventing further execution against him. The basis of this claim to avoid execution was an agreement which the petitioner alleged had been entered into between himself and the decree-holders prior to the institution of the suit on the note to the effect that no remedies should be claimed against him. Although the plaint was for a declaration with consequential relief which the petitioner valued at an arbitrary figure of his own, the learned District Judge found that in effect it was a suit to set aside the decree in so far as it bound him and must therefore be valued for purposes of court-fee accordingly. The petitioner was called upon to pay court-fee of Rs. 3,352-7-0 within a period of two weeks. This he failed to do but the consequential dismissal of the suit was avoided by an order staying further proceedings. It is against this order calling for additional court-fee that this revision petition has been brought.
2. The learned advocate for the petitioner relies on the case of Papamma v. Venkayya : AIR1935Mad860 . That was a case in which an agreement had been entered into subsequent to the institution of a suit but before obtaining the decree. This agreement that execution was not to proceed against one of the parties was set up in the course of execution proceedings. The subordinate Judge found in that case that the agreement was true and could be successfully pleaded in bar of execution. The matter was taken in appeal and the Full Bench held that such an agreement could be set up in execution. . There is, however, an important distinction to be drawn between the facts of that case and the facts of the present case. In the case reported the agreement relied upon was entered into after the institution of the suit but before the passing of the decree, but in the case now under consideration the agreement is alleged to have been entered into before the suit was ever filed. According to the facts set out in the plaint the endorsement of the promissory note by this petitioner in favour of the decree-holders was without any right of recourse and this plaint asserts that the petitioner and his two sons were added only nominally or formally, there being a prior agreement that the decree was not to be executed against them. If the petitioner's endorsement was without any right of recourse, it is difficult to see what relief could have been obtained against him. If there was no right of recourse and there was this prior agreement that execution should not be levied against him and his sons, it is unbelievable that the plaint in that suit would not have contained a statement that no relief was asked for against this petitioner and his sons. Moreover, it is to be expected that the petitioner and his sons would have raised the obvious plea that they were unnecessary parties to the suit and that no relief could be claimed against them because the endorsement had expressly been made without any right of recourse. However, these are questions of fact with which the Court is not at present concerned.
3. The definition of a decree in Section 2 of the Civil Procedure Code is in the following words:
Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
Since the absence of any right of recourse and the prior agreement that no relief should be claimed against the plaintiff are matters arising previous to the institution of the suit, and which should properly have been taken in defence to that suit, it cannot be claimed that the decree did not determine all the rights of the parties. What the petitioner is in effect now saying is that 'there were defences open to me in that suit which I did not bother to raise because no relief was to be claimed against me. Because the decree has been passed against me I now seek to have the matter re-opened and these defences examined.'
4. One of the main objections taken by the learned advocate for the petitioner is that he is not seeking to set aside the decree and that his plaint is outside the scope of the decision in Ramaswami v. Rangachariar : AIR1940Mad118 . But Mr. Kuttikrishna Menon, the learned Government Pleader, contends that unless the suit be brought to set aside the decree, no suit will lie at all for the reason that if the matter is one arising only in execution between the parties it comes within the scope of Section 47 of the Civil Procedure Code and no separate suit will lie. Therefore, if the petitioner insists upon bringing a suit in order to establish the right he claims, he must bring it in a form which takes it outside the scope of Section 47 of the Code and the only way in which he can do that is by claiming to set aside the decree.
5. In the result, I find that the ease of Papamma v. Venkayya : AIR1935Mad860 , relied on by the learned advocate for the petitioner does not apply to the facts of the present case and that the only way in which the decree can be attacked is by setting it aside and not by way of a declaration. The valuation of such a suit comes within the scope of Section 7, Clause (iv)-A (Madras amendment) of the Court-Fees Act and the order calling upon the petitioner to pay the deficit court-fee is correct.
6. This petition is accordingly ordered to be dismissed with costs. The petitioner will be given 21 days from the date of this order in which to make the deficit payment.