Decided on September 14,1964



- (1.) IN this revision Mr. K. S. Paripoornan learned counsel for the plaintiff challenges the order of the learned Subordinate Judge, attingal directing the plaintiff to state the value of the property which is the subject of the suit and to pay the necessary court-fees under S. 40 (1) of the Kerala Court fees Act. The plaintiff purchased the property in question on 27101952 from the second defendant for a sum of Rs. 15,000' -.
(2.) THE first defendant instituted O. S. 21/1125, Munsiffs Court, Nedumangad against the second defendant for recovery of possession of the properties. Notwithstanding that the suit appears to have been dismissed for default in the first instance on 19121952, the first defendant filed an application in that suit for restoration which again was dismissed on 18 81953. But the first defendant appears to have filed a second application for restoring the suit which had been dismissed for default. But in respect of that proceeding it is seen that the second defendant appears to have been exparte and ultimately the suit itself was directed to be restored and decreed in favour of the first defendant on 111155 against the present second defendant who was exparte. As in the mean while, the plaintiff had purchased the property on 2710 52 and as he apprehended that the decree in o. S. 21/1125 may hurt his rights, he instituted the present suit O. S. 3/62, sub-Court Attingal for a declaration that the decree obtained in O. S. 21/1125 does not bind him and also has asked for a further relief by way of setting aside the decree in 0. S. 211125. So far as this relief of declaration is concerned it is seen that he has valued that relief at Rs. 300/- under S. 25 (d) (ii) of the kerala Court Fees Act and paid appropriate court fees and there is no controversy regarding that aspect. But so far as the relief for cancellation of the decree in O. S. 211125 is concerned it is also seen that the plaintiff valued that relief only on the amount specified for purposes of claiming relief in O. S. 211125 & claimed court fees accordingly. But when coming to the jurisdictional value, inasmuch as he has instituted the suit in the Sub Court quite naturally the plaintiff valued the claim for purpose of jurisdiction in the sum of Rs. 15,000/' -. Objection appears to have been taken by the court fee examiners regarding the valuation given by the plaintiff in respect of the relief for setting aside the decree in O. S. 211125. The objection appears to have been that the plaintiff must value that relief not in the sum of Rs. 300/'- shown in O. S. 21/1125 but really at the market value of the properties on the date of the suit.
(3.) THE plaintiff no doubt appears to have raised objection to this note put up by the court fee examiners, but the learned subordinate Judge by his order dated 7th March 1963 has taken the view that the plaintiff seeks a substantial relief by way of cancelling the decree in O. S. 21/1125 and for cancellation of such a decree he has to pay court fees under s. 40 (1) of the Court Fees Act. THErefore in consequence the learned judge is of the view that court fee has to be paid by the plaintiff on the value of the property in respect of which the decree has been passed. Accordingly the plaintiff has been directed to give the value of the property on the date of the suit for which purpose requiring him to pay the necessary court fees under S. 40 (1) of the Kerala Court Fees Act. S. 40 (1) of the Kerala Court Fees and Suits Valuation act 1960, Act X of 1960 is as follows: "suits for cancellation of decrees, etc. (1) Ia a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be. If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed. If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property. " In particular Mr. K. S. Paripoornan laid considerable emphasis on the provisions contained therein particularly the expressions: "the amount or value of the property for which the decree was passed etc. " According to the learned counsel in this case the decree which is sought to be set aside by the plaintiff is the decree in O. S. 21/1125 and according to the decree the amount or value of the property for which the said decree has been passed is only a sum of Rs. 300/- as will be seen from the proceedings connected in O. S. 21/1125. Therefore, the plaintiff was perfectly justified in adopting that value for the purpose of paying court fees regarding the relief of setting aside the decree.;

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