G.N. Das, J.
1. This is an appeal by the plaintiff against a judgment and order passed by Sri J. M. Bir, learned Subordinate Judge, Burdwan, dated 24-2-1951, directing a plaint to be returned for presentation to the Court of the Munsif.
2. The plaintiff came to Court on the following allegations : That on 29-6-1946, the plaintiff obtained a decree for a sum of Rs. 2298-5-9 pies against a firm styled Nootbehari Das Eyomkesh Das in O. C. Suit No. 1743 of 1945 on the Original Side of this Court; that on 28-7-1948, Byomkesh Das granted a registered mokarari lease in favour of Orambabala who is a daughter of Byomkesh's father by his first wife; that on 29-7-1948, the decree obtained by the plaintiff was transferred for execution to the Court of the 2nd Munsif at Burdwan where it was registered as Money Ex. Case No. 80 of 1948; that on 9-8-1948, a deed of sale was executed by Byomkesh in favour of Orambabala in respect of the reversion vested in Byomkesh; that on 30-8-1948, the disputed property which was covered by the registered mokarari lease and by the deed of sale was attached : that on 13-9-48, Orambabala filed a claim under Order 21, Rule 58, Civil P. C. to the attachment of the disputed property. This was registered as claim Case no. 162 of 1948. That on 31-8-1949, the said Olaim Case was allowed and attachment was directed to be lifted:
On 20-9-1949, the plaintiff filed the present suit purporting to be under Order 21, Rule 63, Civil P. C. on the allegations referred to above. In this suit the plaintiff impleaded Orambabala as defendant No. 1, the firm Nootbehari Das Byomkesh Das as defendant No. 2 & Byomkesh Das as defendant No. 3. In para 5 of the plaint the plaintiff inter alia alleged that the mokarari lease and the kobala. in favour of defendant No. 1 was entirely without consideration and was a fraudulent, sham and paper transaction; that the said mokarari lease and kobala were executed with the intention of defrauding the plaintiff of his just dues. The plaintiff valued the suit for the purpose of jurisdiction, at a sum of Rs. 9000/-, this being, according to him, the value of the disputed property but he paid court-fees under the provisions of Sch. 2, Article 17(i), Court-fees Act. In the plaint the plaintiff made the following prayers :
(ka) It may be declared that the property described in the schedule to the plaint is owned and possessed by defendant No. 3 and that the same is liable to attachment and sale in Ex. Case No. 80 of 1948 started by the plaintiff and that the plaintiff has the right. to cause attachment and sale of the said-property; (kha) That the summary order in Claim Case No. 162 of 1948 be set aside; and (ga) For costs of the suit and incidental reliefs. The defendant filed a written statement on 10-1-1950. On the pleadings of the parties issues were raised, one of the issues being Issue No. 3 which was in these terms: 'Has the Court jurisdiction to try the suit?' This issue was taken up for preliminary hearing and by order dated 24-2-1951, the learned Judge was of opinion that the suit had been over-valued for the purposes of jurisdiction and directed return of the plaint to the Court of the Munsif. The plaintiff has accordingly preferred this appeal.
3. Mr. Banerjee, appearing for the plaintiff, has first contended that the suit on a true view of the plaint must be regarded as one under the provisions of Section 53, Transfer of Property Act. He has submitted that the mere fact that no leave under Order 1, Rule 8, Civil P. C. had been taken was immaterial and that such leave could be granted by this Court. I have set out the substance of the plaint In my opinion, the allegation in paragraph 5 of the plaint merely stated that the lease and the kobala were fraudulent transactions intended to defeat the claim of the plaintiff. That allegation merely indicated the motive for the execution of the lease and the kobala. There was no clear aver-ment that the suit was being filed on behalf of the plaintiff and all other creditors of the debtor, defendant No. 2. The suit cannot therefore be regarded as one under the provisions of Section 53 Transfer of Property Act. The first contention must therefore fail.
4. Mr. Banerjee pointed out that the plaintiff prayed for a declaration of the title of the defendant judgment-debtor, and that the judgment-creditor, the claimant, and the judgment-debtor were all parties, and submitted that if the suit is decreed, there will be an adjudication of title as between the plaintiff and the claimant and the judgment-debtor. The declaration of title was, a necessary relief in the plaint and even though the claimant and the judgment-debtor were co-defendants the decision in the suit would operate as res judicata. The last submission that the decision may operate as res judicata is sought to be supported by a decision of the Judicial Committee-in the case of -- 'Munni Bibi v. Triloki Nath' . The fact that the judgment-debtor did not appear and might not appear is not a relevant consideration in deciding this question of res judicata vide -- 'Maung Sein Done v. Ma Pan Nyun' , The question, however, is whether this is a material consideration in determining the value of the suit. The suit was filed under the provisions of Order 21, Rule 63, Civil P. O. and the court-fees were paid on the plaint on that basis under the provisions of Sen. 2, Article 17 (i) of the Court-fees Act. Section 4, Suits Valuation Act (7 of 1887) merely lays down that in such suits the value of the relief claimed will not exceed the value of the property but this was subject to rules. No rules have yet been framed as envisaged in that section.
5. The position, therefore, is that the value of the suit has to be determined on general principles. In the case of -- 'Sm. Bibi Phul Kumari v. Ghan-sham Misra', 35 Ind App 22 (PC) (C), it was observed by Lord Robertson as follows:
'The value of the action must mean the value to the plaintiff. But the value of the property might quite well be Rs. 1000/- while the execution debt was Rs. 10,000/-. It is only if the execution debt is less than the value of the property that its amount affects the value of the suit.'
These observations were made in a case where the plaintiff was the claimant and was objecting to the summary order passed in a claim, case. The only question which arose for decision in the case concerned the amount of court-fees payable. At the same time in determining this question the Judicial Committee had to consider the nature of the suit. It was in that connection that the observations quoted above were made by Lord Robert-son. Thus the value of the action must mean the value to the plaintiff and the relevant enquiry would in each case be--what was the value of the action to the plaintiff? in the present suit the plaintiff is the judgment-creditor and was not interested in an adjudication of the conflicting title of the claimant and the judgment-debtor. He was merely concerned to see that the property which had been attached and the attachment whereof has been released as a result of a summary order in a claim case started by the claimant, is made available for attachment and sale in execution of this decree.
It is only to that end that a prayer was made in the plaint that the disputed property is owned and possessed by the judgment-debtor. This part of the prayer is only ancillary to the main prayer in the plaint which was to make the disputed property available for attachment and sale. If the suit succeeds, the disputed property would be attached and then sold. If the sale proceeds exceed the decretal debt, the surplus sale proceeds would go not to the plaintiff but to the judgment-debtor. The plaintiff would only be entitled to recover the amount of the decree. In the contingency of the suit succeeding the value of the action would be the amount of the decretal debt. If the suit fails, the plaintiff would be deprived of the right to realise the decretal debt out of the disputed property. Judged by the aforesaid principles the conclusion, in my opinion, is that in the facts of this case, the value of an action is not the value of the disputed property but the amount of the decretal debt.
This view is amply supported by a Bench decision of this Court in the case of --'Modhusudan Koer v. Rakhal Chunder Roy', 15 Cal 104 (D). This decision was pronounced as far back as the year 1887. The decision has stood unchallenged in this Court for all these years. We have looked into the records and find that the claimant and the debtor were both parties and a prayer for declaration of title of the debtor was made. Mr. Banerjee was fully alive of the fact that the present case is covered by the aforesaid Bench decision. He has, therefore, pressed us to refer this matter to a Full Bench and in support of his submission he has drawn our attention to a number of decisions of the High Courts of Allahabad, Madras and Rangoon. I shall deal with these cases presently.
6. The first case on which reliance was placed is a decision in the case of -- 'Dwarka Das v. Kameshar Prasad', 17 All 69 (E). In that case the suit which followed an unsuccessful application under Order 21, Rule 58, Civil P. C. was instituted by the claimant, the parties defendants being the decree-holder and the judgment-debtor. The judgment of the Court was delivered by Sir John Edge, C. J. The learned Judge was of the opinion that the value of the property must be regarded as the value of the action in that suit. The learned Judge starts by saying that the question for determination is the liability to attachment but he goes on to add that in deciding this question the title of the judgment-debtor and the claimant would be in controversy and as such res Judicata between the parties in future proceedings. On this ground the learned Judge was of opinion that it was the value of the property which was to be regarded as the subject-matter of the suit.
It is not necessary to consider whether the line of reasoning adopted by the learned Chief Justice is correct or not. I shall presently refer to a later Full Bench decision of the Allahabad High Court which has taken a contrary view. It is not necessary to decide the correctness or otherwise of the view taken by the Chief Justice. It is sufficient to say that the suit, the value whereof was in question, was instituted by the claimant and not by the decree-holder. It may be suggested that where the claimant is the plaintiff, he is not interested in the amount of the decree because the claimant is not liable under the decree. He is interested only in establishing his title to the property and it is the value of that property which may be regarded as the value of the subject-matter in the suit. This decision, therefore, is clearly distinguishable from the facts of the present case.
7. The Full Bench decision to which I have adverted is the case of -- 'Moolchand Motilal v. Ram Kishen' : AIR1933All249 . The suit, the value whereof had to be determined by the Full Bench, was a suit by the claimant. To that suit both the decree-holder and the judgment-debtor were parties and one of the prayers in the plaint was that the property in dispute belonged to the claimant and was not liable to attachment and sale. In the course of the judgment the learned Acting Chief Justice reaffirmed the principle which was enunciated in the case of -- 'Khetra Pal v. Mumtaz Begam', AIR 1915 All 436 (G), which, was that in such a suit the whole of the property is not in dispute but only so much of it as will be required to satisfy the claim of the executing decree-holder, in that view the Full Bench decided that the value of the suit was the value of the decretal debt. This Full Bench must therefore be taken to have overruled the view taken by the Bench of the Allahabad High Court in -- '17 All 69 (E)'.
8. Mr. Banerjee has also referred us to the decision in the case of -- 'M. Narayan Singh v. Aiyasami Reddi', AIR 1916 Mad 858 (H). Here also the claimant was the plaintiff and the parties-defendants were the decree-holder and the judgment-debtor. The Bench decided that the value of the property must be taken to represent the value of the suit. For the reasons which I have given while dealing with the decision in -- '17 All 69 (E)' this case is also distinguishable.
9. The next case referred to is the case of --'Daw Dut v. Daw Kwi', AIR 1932 Rang 20 (I). This is a decision of a single Judge, Baguley J. Here also the claimant was the plaintiff and the parties defendants were the decree-holder and the judgment-debtor. The value of the suit was taken to be the value of the property. This case is also distinguishable -on its facts from the present case.
10. Mr. Banerjee has also referred us to the decision in the case of -- 'Maung Tun Thein v. Maung Sin', AIR 1934 Rang 332 (J). This was a decision of Dunkley J. sitting singly. The suit was one by the attaching creditor and may be taken to be a suit of the description with which we are concerned. In the course of the judgment the learned Judge observed that one of the prayers in the plaint was the avoidance of the transfer by the judgment-debtor in favour of the claimant. If this was one of the prayers in the plaint, naturally, as the deed of conveyance had to be avoided, the value of the suit would be the value of the property itself. The case would be distinguishable on this ground but quite apart from this, this decision' is a decision of a single Judge and, in my opinion, being opposed to a Bench decision of this Court it must be regarded as wrongly decided. I have already stated the principles on which, such suits have to be valued, in my opinion the decision, being opposed to the principles enunciated above, must be taken to have been wrongly decided. These are the cases to which Mr. Banerjee drew our attention.
11. On behalf of the respondent Mr. Goswami referred us to the decision in the case of --'Barjor Dorabji v. Calcutta Chemical Co., Ltd', 43 Cal W N 609 (K). In this case the plaintiff was the claimant. The property which had been attached had already been sold and the plaintiff being the claimant was required to establish his title in order that he may get back his property from the purchaser. Mitter J. who delivered the judgment, referred to the observations of Lord Robertson already quoted and stated that the value of the property must be regarded as the value of the subject-matter. As I have said, the decision is clearly distinguishable because the title to the property had already passed by the sale and the claimant was bound to establish his title before he could get any relief in the suit. This was the reason given by Mitter J. for holding that the value of the suit must be taken to be the value of the property.
12. The cases cited by Mr. Banerjee barring the decision in -- 'AIR 1934 Rang 332 (J)' are clearly distinguishable. There is no reason therefore to refer the matter to a Pull Bench. The view taken by the learned Subordinate Judge is correct and must be affirmed.
13. I desire to add that I have not considered the case where the value of the property does not exceed the decretal debt. In such cases, the question may have to be decided on the principles underlying s. 4, Suits Valuation Act. I express no opinion on this point.
14. This appeal accordingly fails and is dismissed with costs, hearing fee being assessed at two gold mohurs.
Debabrata Mookerjee, J.
15. I agree.