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S.V.K.N. Palaniappa Chettiar Vs. M.N. Rayalu Ayyar Nagaswami Aiyar and Co. Through Its Partner M.M.S. Radhakrishna Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1969)1MLJ41
AppellantS.V.K.N. Palaniappa Chettiar
RespondentM.N. Rayalu Ayyar Nagaswami Aiyar and Co. Through Its Partner M.M.S. Radhakrishna Aiyar and ors.
Cases ReferredMeenaskshisundara v. Narayanaswami I.L.R.
Excerpt:
- .....it is unnecessary to stress the fact that either a copy application or an execution petition in a suit instituted before the commencement of the 1955 act is certainly a proceeding arising from a suit instituted before that act. that decision cannot be used as authority for any purpose other than the question which is actually decided. i may also refer in this connection to a decision in in re abdul gafoor (1957) 2 an. w.r. 349 : a.i.r. 1958 a.p. 267. though that was a case relating to a writ the principle of that decision is very important. it is there observed that what is contemplated by the expression ' a proceeding arising otherwise ' is that the proceeding, though not in the nature of appeal or revision, must nevertheless indicate the legal pursuit of remedy connected with the lis.....
Judgment:

A. Alagiriswami, J.

1. These three Civil Revision Petitions are by the same petitioner and arise out of orders made by the learned Subordinate Judge, Madurai, in two plaints in unnumbered original suits and by the Subordinate Judge, Sivaganga, in one plaint wherein they have held that the Court-fee payable for a suit under Order 21, Rule 63, Civil Procedure Code, is payable under Section 41 of the Madras Court-fees Act, 1955 and that Section 87 (2) of that Act does not enable the petitioner to pay Court-fee under the Court-fees Act of 1870. There was a suit O.S. No. 96 of 1943, which was a money suit filed by the petitioner. It was decreed in 1944. In 1958 the petitioner attached certain properties and the claim petitions in respect of those properties filed under. Order 21, Rule 53 were allowed and thereupon the plaintiff sought to file three suits and aggrieved by the order directing him to pay Court-fee under Section 41 of the Madras Court-fees Act of 1955, he has filed these three revision petitions.,

2. The claim petitions in these cases were of the year 1961 and the execution proceedings themselves were in 1958. There is direct authority of this Court in the decision of Ramachandra Iyer, C.J., in Meenakshisundara v. Narayanaswami (1965) 2 M.L.J. 449 : I.L.R. (1965) Mad. 90. It was this decision which the lower Court followed in its order. It is urged on behalf of the petitioner that this decision is wrong and that the matter may be referred to a Bench, on the ground that this decision either ignores some earlier decisions or conflicts with some earlier decisions. Learned Counsel for the petitioner has referred me to the decisions in Phulkumari v. Ganghyami Misra L.R. (1908) 35 IndAp 22 : 1908 17 M.L.J. 618 : I.L.R. 35 Cal. 202 (P.C.), Kallinkutti Amma v. Kunhilakshmi Amma : AIR1947Mad275 , Arumuga v. Venkatachala Pillia : AIR1933Mad439 , and Udaichand v. Firm Pannalal Champlal : AIR1941Pat174 , which refer to the earlier decisions of the Bombay High Court in Parvathi v. Kisanging I.L.R.(1881) 6 Bom. 567, and Dhondo Sakaram Kulkarni v. Govind Babaji Kulkari I.L.R.(1885) 9 Bom. 20. I am not able to see what connection those decisions have with the matter under consideration. They merely decided that where a suit is filed under Order 21, Rule 63, the fact that certain other reliefs are asked for in addition to the relief of setting aside the order on the claim petition does not mean that Court-fee is payable except for setting aside the claim order. The decision is Ramanathan Chettiar In re : AIR1942Mad390 , merely deals with the question as to what ' proceeding ' is. In fact, Ramachandra Iyer, C J., referred to two earlier decisions of this Court one by Panchapakesa Ayyar, J., in Thiruvenkadasami v. Stale of Madras (1959) 72 L.W. 136 : I.L.R. (1959) Mad. 460 : (1959) 1 M.L.J. 151, and an earlier decision of his own in Chakravarti v. Collector of Madras I.L.R. (1960) Mad. 954. The decision in Thiruvengadaswami v. State of Madras (1959) 72 L.W. 136 : I.L.R. (1959) Mad. 460 : (1959) 1 M.L.J. 151 was one where the claim petition was tiled before the 1955 Court-fees Act came into force and therefore it was held that as the suit arose out of a claim petition filed before the 1955 Act came into force, the Court-fee payable Would be under the old Act. In fact specifically it was remarked in that decision at page 134, that:

Proceedings taken, namely, the claim petition out of which the claim suit arose, were instituted before the commencement of the new Court-fees Act and so the Court-fee payable would be governed only by the provisions of the then (old) Court-fees Act.

3. This interpretation of Section 87 (2) is directly against the contention taken on behalf of the petitioner. Section 87 (2) reads as follows:

All suits and proceedings instituted before the commencement of this Act and all proceedings by way of appeal, revision or otherwise arising therefrom instituted before or after such commencement shall, notwithstanding the repeal of the Court-fees Act, 1870 (Central Act VII of 1870) and the Suits Valuation Act, 1887 (Central Act VII of 1887) be governed by the provisions of the said Acts and the Rules made thereunder.

4. Now the suits in this case were not either suits or proceedings instituted before the commencement of the 1955 Act. Nor are they proceedings by way of appeal or revision in suits or proceedings instituted before the commencement of the 1955 Act. So the only question is whether they are proceedings otherwise arising from suits or proceedings instituted before the commencement of the 1955 Act. The argument on behalf of the petitioner is that as the claim petition out of which these suits arise, arose out of a money suit (O.S. No. 96 of 1943) this would come under Section 87 (2). That suit it must be remembered was a money suit. A claim petition does necessarily arise from a money suit. Execution proceedings, of course, might arise from a money suit and there may be a claim petition in execution proceedings where properties are sought to be attached. Therefore, while a claim petition might be said to arise from execution proceeding it cannot be said to arise from the suit itself, especially whore it is a money suit. We are concerned only with the question as to what the present suits arise out of. They arise out of only the claim petition. That is the purport of the decision of Ramachandra Iyer, C.J., in Meenakshisundara v. Narayanaswami I.L.R. (1965) Mad. 90 : (1965) 2 M.L.J. 449. On behalf of the petitioner reference was made to the decision in Ganga v. Sundram : AIR1956Mad597 , to which reference is made by Ramachandra Iyer, J., (as he then was) in Chakravarthl v. Collector of Madras I.L.R. (1960) Mad. 954, The decision in Ganga v. Sundaram : AIR1956Mad597 , related to the question whether a copy application in a suit disposed of before the coming into force of the 1955 Court-fees Act could be said to be a proceeding otherwise arising from a suit or proceedings instituted before the commencement of 1955 Court-fees Act and it was held that it was. It is unnecessary to stress the fact that either a copy application or an execution petition in a suit instituted before the commencement of the 1955 Act is certainly a proceeding arising from a suit instituted before that Act. That decision cannot be used as authority for any purpose other than the question which is actually decided. I may also refer in this connection to a decision in In re Abdul Gafoor (1957) 2 An. W.R. 349 : A.I.R. 1958 A.P. 267. Though that was a case relating to a writ the principle of that decision is very important. It is there observed that what is contemplated by the expression ' a proceeding arising otherwise ' is that the proceeding, though not in the nature of appeal or revision, must nevertheless indicate the legal pursuit of remedy connected with the lis so that by its very nature, it may be an off-shoot of the suit or proceeding previously instituted. A claim petition is in no way connected with the Us of the original suit in the execution proceedings in respect of which the claim petition arises, nor does a claim petition arise by its very nature as an off-shoot of a money suit. There is therefore no justification for holding that a suit under Order 21, Rule 63, arises out of the original suit in the execution proceedings in which a claim petition is filed. Such a suit arises only out of the claim petition or at the most from the execution proceedings in which the claim petition is filed and certainly not from the earlier money suit. I therefore agree with respect with the decision of Ramachandra Iyer, C.J., in Meenaskshisundara v. Narayanaswami I.L.R. (1965) Mad. 90 : (1965) 2 M.L.J. 449, and hold that there is no conflict between that decision and any of the decisions referred to on behalf of the petitioner and there is therefore no need to refer the question to a Bench.

5. The three revision petitions are therefore dismissed. Time for payment of Court-fee six weeks from the date of receipt of the order in the lower Court.


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