Ramachandra Ayyar, J.
1. This revision petition is directed against the finding on issue No. 12 in O.S. No. 10 of 1958, on the file of the Sub-Court, Nilgiris, Ootacamund, relating to Court-fee payable on the plaint.
2. The plaintiffs are the petitioners. They obtained a decree for possession of certain properties in O.S. No. 81 of 1951 against the first respondent, but when they proceeded to execute the decree, they were obstructed by respondents 2 to 4. Thereupon, they filed E.A. No. 149 of 1956 under Order 21, Rule 99, Civil Procedure Code, for removal of obstruction. That application was dismissed. O.S. No. 10 of 1958 was instituted to set aside the order passed in E.A. No. 149 of 1956. The petitioners valued the suit as if the subject-matter had no market-value, and fixed Rs. 400 for the purpose of jurisdiction and paid a Court-fee of Rs. 30 under Section 50(3) of the Madras Court-fees Act. The suit was contested by the respondents, and one of the issues raised related to the Court-fee payable on the plaint. The learned Subordinate Judge held that Section 41(2) of the Madras Court-fees Act, 1955, would apply to the case, and that the Petitioners should value the relief on one-fourth of the market-value of the property, forming the subject-matter of the suit, that is, the property in respect of which a decree for possession was passed in O.S. No. 81 of 1951. He, accordingly, directed the Petitioners to make necessary amendments to the plaint and pay the requisite Court-fee. The Petitioners have filed this Civil Revision Petition, questioning the correctness of the order of the lower Court.
3. Section 41(2) of the Court-Fees Act states:
In a suit to set aside any other summary decision or order of a Civil or Revenue Court, if the subject-matter of the suit has a market value, fee shall be computed on one-fourth of such value, and in other cases, fee shall be payable at the latcs specified in Section 50.
Section 50, which is in the nature of residuary section, provides for suits not otherwise provided for in the Act. That prescribes a Court-fee of Rs. 30 if the value of the subject-matter were Rs. 5,000 or below.
4. The learned Counsel for the Petitioners contended that the suit does not relate to any property but is concerned only with the setting aside of his summary order passed in E.A. No. 149 of 1956, and that the subject-matter of the suit should be held to be the summary order itself, which could have no market-value, and that, therefore, the Court-fee payable was only under Section 50. In support of that contention, reference was made to the principle established in Phul Kumari v. Ghanshyam Misra I.L.R. (1908) Cal. 202. In that case, defeated claimant in execution proceedings filed a suit for declaration of the rights to the property and for an injunction to restrain the other party from executing the decree. The Privy Council held that the suit was in essence one to review the summary decisions in the Claim Petition, and that Article 17(1) of Schedule II of the Court-fees Act of 1870 would apply to the case. Under the Court-fees Act (VII of 1870) it had been consistently held that although a suit was for the purpose of setting aside a summary decision and also for incidental reliefs like injunction, possession, etc., the suit was substantially one for setting aside the summary order and would fall under Article 17(1) of Schedule II of the Court-fees Act of 1870, and the fee chargeable would be only that mentioned therein. Vide Sakharam Khulkarni v. Govind Babaji I.L.R. (1884) 9 Bom. 20 Udai Chand Lal v. Firm Pannalal Champalal : AIR1941Pat174 and Kalliani Kutti v. Kunhilakshmi : AIR1947Mad275 . Under that provision, a fixed Court-fee was payable in respect of suits for altering or setting aside a summary order. The decision referred to accepted the principle that where the substantial relief was to set aside the summary order, the fact that incidental reliefs were prayed for could not alter the nature of the suit and that the Court-fee should be paid under Article 17(1) of Schedule II. Those decisions did not proceed on the basis that a suit to set aside a summary decision was necessarily incapable of valuation but that there was a specific provision in the enactment prescribing a fixed fee for such suits. But under the Madras Court-fees Act of 1955 suits to set aside summary orders are divided into two categories, those in which the subject-matter is capable of valuation and those in which it is not so capable. The principle that where a suit is substantially one to set aside a summary order, the inclusion in the suit of incidental reliefs like injunction, possession, etc., will not alter the character of the suit, would also apply to cases under the new enactment. But even so, the question would still be as to whether the subject-matter of a particular suit to set aside a summary order has a market value.
5. The contention that a summary order itself should be deemed to be the subject-matter of the suit cannot be accepted. Both under Order 21, Rule 63 and Order 21, Rule 103, Civil Procedure Code, it is not propriety of the preceding summary order that would be in question. It is well settled that an application under Order 21, Rule 58, is concerned only with the question of possession and those under Order 21, Rules 99 and 101, with the question whether the obstructer was in possession in his own right. The suits to contest those orders which are summary in their nature contemplate the adjudication of title. They are not mere appeals from the summary orders though for certain purposes they have been construed to be a continuation of the earlier proceedings. Under Order 21, Rule 63, Civil Procedure Code, the plaintiff will have to establish the right which he claims in the. property in dispute. Under Order 21, Rule 103, he will have to establish the right which he claims to the present possession of the property. Thus, in either case, the question of title to the property would necessarily have to be adjudicated.
6. In Kaleswara Mills, Ltd. v. Govindaswami Naicker : AIR1946Mad76 it was held that a suit under Order 21, Rule 103, was not one for mere determination of the question of possession of the parties concerned, but the establishment of the right or title by which the plaintiff claimed to the present possession of the property. It cannot, therefore, be said that the subject-matter of the suits are the summary orders themselves ; it would be more appropriate to state that the subject-matter of the suit was the title to the property which was the subject-matter of the claim, obstruction or re-delivery proceedings, as the adjudication of title to that property would be involved in the suits. According to the Concise Oxford Dictionary, the word ' subject' means 'theme, discussion or representation or matter to be treated or dealt with.' Therefore, the subject-matter of a suit would mean a matter to be treated or dealt with in the suit. It cannot be disputed that the main matter to be dealt with in the suit (be it under Order 21, Rule 63 or Order 21, Rule 103) is title to the property which was the subject of the claim or obstruction proceedings. It would follow that the subject-matter of such suits would be the property and not the order. In Krishnaswami Naidu v. Somasundaram Chettiar (1907) 17 M.L.J. 95 : I.L.R. (1907) Mad. 335 question arose as to the proper valuation of a suit under Section 283 corresponding to Order 21, Rule 63. It was held that the value of the subject-matter of the suit should be taken to be the amount for which the attachment was made. It is implicit from that decision that the subject-matter would be capable of valuation. In Sankarachariar v. Lakshmanan Chettiar : (1949)1MLJ195 a question arose as to the valuation for the purposes of jurisdiction of a suit to set aside a summary order concerning immoveable property. Section 14 of the Madras Civil Courts Act provided for the valuation of suits, the subject-matter of which was land, house or garden. It was held that a suit under Order 21, Rule 63, to set aside a summary order would come within that section and the subject-matter of the suit should be held to be what the summary order was concerned with, viz,., the immoveable property. I am of opinion that the interpretation of the words 'subject-matter' in that decision would be applicable to Section 41(2) of the Court-fees Act as well. In the instant case, the subject-matter of the suit would be the property in respect of which delivery was sought but refused. That property is capable of valuation and has to be valued for the purpose of Court-fee under Section 41(2) on one-fourth its market-value.
7. The order of the lower Court is, therefore, correct. This Civil Revision Petition fails and is dismissed. There will be no order as to costs.