Decided on May 25,1968

KESAVAN Appellant
RAMANATHAN Respondents


- (1.) What the appellant seeks is to have the decree appealed against set aside in so far as it makes the amount decreed recoverable by the sale of his interest in the property. He does not dispute the amount of the decree; what he disputes is the recovery of the amount by the sale of his interest; and it seems to me clear that the value of the subject matter in dispute is the amount decreed or the value of the appellant's interest whichever is less -- see Kesavarapu Ramakrishna Reddi v. Kotta Kota Reddi ILR 30 Madras 96 (FB.). The case I think falls under Art.1 of Schedule I of the Kerala Court Fees and Suits Valuation Act, 1959. The appellant seeks to bring it under S.52 Explanation (4) read with S.25(d)(ii) so as to justify payment of court fee on Rs. 300. But that cannot be allowed since, in the first place, what he now seeks is not a mere declaration but the setting aside of the decree so far it is against his property and secondly because the subject matter in dispute is capable of valuation. The provision to be read with explanation (4) to S.52 is, I should think, S.40(2) under which court fee is payable on the amount of the decree or the value of the property in question whichever is less.
(2.) The appellant will value his interest in the property in suit and pay court fee on that amount or on the decree amount whichever is less. Time two weeks.;

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