1. A check slip by the Court-fee examiner was issued when the appeal was pending on the file of the District Court, Eluru. After the transfer of the appeal to be heard along with the connected appeals in this Court, this check slip comes up before me for orders.
2. The question of court-fee has to be decided only with reference to the subject matter of the suit and the appeal thereon, and the way in which the plaintiff formulated the reliefs may have little bearing on the subject. The suit, property was attached in proceedings in a criminal court under Section 88 (6-D), Criminal P. C. The plaintiff applied to the criminal Court which had ordered the attachment of the properties for releasing the attachment on the-ground, that the properties belong to the plaintiff and not to the accused person against whom these proceedings had been taken. That petition was dismissed by the Magistrate. Thereupon the plaintiff filed the suit. The suit provided for by Section 88 (6-D), Criminal P. C. is a suit 'to establish the right which he claims In respect of the property in dispute.' That was the real scope of the suit. If that right was established, the attachment would have to be vacated by the Magistrate, and it was realty unnecessary for the plaintiff to ask for the further relief of release from attachment; nor could such an unnecessary relief be viewed as a relief consequential on the declaration of the plaintiff's right. The scope of the suit which was actually filed has to be gathered with reference to the language of Section 88 (G-D), Criminal P. C.
3. The plaintiff paid court-fee, treating the-plaint as one falling within Article 17 (i) of Sen. II, Court-fees Act. It is agreed on all hands that Article 17 (i) would not apply, because the attachment was ordered not by a civil Court, nor by a revenue Court, but by a criminal Court. The Court-fee Examiner was of the view that the suit would have to be valued under the proviso to Section 7, Clause iv (c), Court-fees Act. On that basis, the Government, which had preferred an appeal, paid the deficit court-fee demanded, but that course does not preclude the learned Government Pleader in pointing out at this stage that Section 7, Clause iv (c) does not apply to the plaint in the present case, nor to the memo of appeal. The learned counsel for the plaintiff-respondent urged at one stage that the plaint would have to be stamped under Article 17 B of Sch. II, Court-fees Act. That relates to 'plaintor Memo of appeal In every suit, where it is not possible to establish on money value the subject matter in dispute and which is not otherwise provided for by this Act.' Neither of the texts specified there is satisfied. It cannot be said that the subject matter of the suit, the property claimed by the plaintiff, is incapable of a money estimate; nor can it really' be said that the claim referred in the plaint is not otherwise provided for by this Act. Article 17 B of Sch. II, Court-fees Act does not apply.
4. Article 17 A item (i) should in my opinion apply. This is a plaint to obtain a declaratory decree where no consequential relief is prayed. I have already referred to the language of Section 88 (6-D), Criminal P. C. under which the suit was filed. The suit was for a declaration of the right of the plaintiff. I have also pointed out that it was wholly unnecessary for the I plaintiff in such a case to have asked for any consequential or further relief, that the attachment should be raised. So the suit contemplated by Section 88 (6-D), Criminal P. C. is a suit to obtain a declaratory decree where no consequential relief is asked for within the meaning of Article 17-A (i) of Sch. II, Court-fees Act. Since the suit was filed in a sub-Court, and since the valuation for purposes of jurisdiction was below Rs. 10,000 and that valuation was never objected to even by the Court-fee Examiner, the court-fee payable on the plaint was Rs. 100. Rs. 15 was paid as under Article 17 (i) of Sch. II of the Act. The deficit of Rs. 85 will have to be paid. Time for payment 15 days.
5. It follows from this that the excess court-fee paid by the Government on the Memo of appeal will have to be refunded to them. That is, a certificate will have to issue for the refund.