1. The facts of this revision petition may be thus stated. Defendants Nos. 1 and 2 are contractors In the course of the business the 2nd defendant got a cheque for Rs. 4,211 dated 11th August, 1927, drawn on the Imperial Bank of India, Erode. According to the plaintiff the cheque was negotiated for valuable consideration on the same date and the plaintiff became the owner in due course. Before he could present it for payment, the 1st defendant filed a suit against the 2nd defendant (O.S. No. 477 of 1927), in the District Munsif's Court of Erode and the plaintiff in that suit (the present 1st defendant) applied for a prohibitory order prohibiting the Imperial Bank of India from paying the amount to the 2nd defendant or his endorsees. The plaintiff intervened with I.A. No. 973 of 1927, for raising that order, but it was dismissed. Hence he brings this suit for a declaration to establish his right to obtain payment under the cheque or at any rate for a declaration that the cheque was endorsed to him for valuable consideration. Besides the 2nd defendant the Imperial Bank was originally impleaded as 3rd defendant. He followed the plaint by a petition praying that the Imperial Bank may be directed to deposit the actual amount in Court. This petition was dismissed on 30th November, 1927. One of the issues framed in the case is the 3rd issue which runs as follows:
Whether the suit for a mere declaration is sustainable in law.
2. Apparently, the case was set down for hearing on this issue and on issues No. 6-a and 6-b, Issue No. 6-5 relates to Court-fee. As regards issue No. 6a the Subordinate Judge held that the 3rd defendant is not a necessary party. He says. 'The 3rd defendant does not hold any money belonging either to the 2nd defendant or to the 1st defendant but is merely the custodian of the Government money deposited with them. They would have cashed the cheque but for the prohibitory order of the Court. If the plaintiffs establish their title to the cheque as against defendants Nos. 1 and 2, the 3rd defendant would certainly have no objection to pay the money due thereunder if the cheque be still in force. The 3rd defendant is, therefore, an unnecessary party to this suit and the suit must be dismissed with costs as against him.' As a result of this order the suit continues only against defendants Nos. 1 and 2.
3. On the 3rd issue the Subordinate Judge has held that the suit which is for a mere declaration is not sustainable and asked the plaintiff to pay ad valorem Court-fee on issue No. 6-b. It the Subordinate Judge held that the 3rd defendant was a proper and necessary party to the suit his order about Court-fee on the 3rd issue would have been intelligible. But seeing that his finding on issue No. 6-a is that the 3rd defendant is an unnecessary party and that the suit should be dismissed as against him and the suit should proceed against the others, it seems to me that the suit for a declaration is sustainable, and to insist on the payment of ad valorem Court-fee would be denial of justice. If the plaintiff can get a declaration as against defendants Nos. 1 and 2 that he was the holder in due course of the cheque, it would follow that it ought to have been paid when it was presented and even if for any reason he may be unable to obtain payment from the Imperial Bank hereafter on the ground that the presentation of the cheque cannot be regarded as continuing, still the declaration of his title as against defendants Nos. 1 and 2 would furnish him a proper cause of action for maintaining another suit against the 2nd defendant to recover the money. No doubt in such a suit he will have to pay full Court-fee. But in the present suit which is merely for a declaration and which does not seek to recover money from any of the parties now in suit and which cannot end in a decree directing any of the defendants to pay money to the plaintiff, the plaintiff cannot be required to pay ad valorem Court-fee. I must hold that the suit as framed for a declaration is sustainable.
4. Mr. Subramania Iyer who appeared for the 2nd defendant contended that the suit cannot be instituted as such under Order XXI, Rule 63, Civil Procedure Code, because the attachment of the cheque was not made by seizure but only by a prohibitory order. He relied upon the decision in Muthiah Chetti v. Palaniappa Chetti (1). In that case the defendants contended that the suit was barred under Article 11 of the Limitation Act and as a reply to that defence the plaintiff said that there was no proper attachment. The Privy Council held that unless the attachment is made in the manner prescribed by the Code, Article 11 could not apply. In this case the plaintiff submits to the prohibitory order and brings a suit. Apart from this, I think this suit can be regarded as a suit for a general declaration and not as one under Order XXI, Rule 63, Civil Procedure Code.
5. Mr. Ramaswamy Iyer who appeared for the 1st defendant contended that the plaintiff applied that the amount of the cheque should be brought to Court and be held in deposit and, therefore, the suit may be regarded as one for money. That petition has been dismissed and now that the 3rd defendant is struck of there is no prayer in the suit which could end in a. decree for payment of money against any defendant. That being so I think the Court-fee already paid by the plaintiff is sufficient. I set aside the order of the Subordinate Judge and direct the suit to proceed as it stands.
6. The petitioner is entitled to his costs of this petition payable by the respondent. Costs in the Court below will abide the result.