Sambasiva Rao, J. - (1.) A question of some importance concerning Court-fee arises in A.S. No. 586 of 1969. C.M.A. No. 72 of 1970 has been brought along with the regular appeal because it is about the same matter and between the same parties.
(2.) One Matta Krishna Reddi had two sons-Venkata Koti Reddy and Sitarama Reddy. Sitarama Redcly filed O.S. No 32 of 1967 in the Court of the Subordinate Judge, Vijayawada for partition of the properties in which his father and elder brother were defendants 1 and 2. That was decreed ex parte on 7th July, 1967 and a preliminary decree for partition, was passed. Both the defendants filed petitions under Order 9, rule 13 for setting aside tbe ex parte decree, the one filed by the elder brother (D-2) being I.A. No. 1803 of 1968 and the other filed by the father (D-:) being I.A. No. 2166 of 1968. Both the petitions were dismissed on 4th February, 1970 on the ground that the petitions had not been filed within 30 days of knowledge of passing of the ex parte decree. The two defendants in O.S. No. 32 of 1967 as plaintiffs 1 and 2 and the two sons of the second defendant as plaintifts 3 and 4 also filed O.S. No. 259 of 1968 in the same Court on 16tb August, 1968 for cancellation of the decree in O.S. No. 32 of 1967. A fixed Court-fee of Rs. 300 was paid on the plaint under section 47 of the Court-fees Act. The Court fee Examiner took objectior. to this and upholding the objection the Court decided that the matter is governed by section 37 (i) and directed the plaintiffs to pay the Court-fee of Rs. 1,506. After deducting the Court-fee that had already been paid the deficit Court-fee of Rs. 1,206 was directed to be paid. But, the Counsel for the plaintiffs reported that the plaintiffs were not able to pay the Court-fee and so the plaint was rejected with the costs of the proceedings.
(3.) Father, Krishna Reddy (D-1) in O.S. No. 32 of 1967 died on 24th December, 1968 and the second defendant in O.S. No. 32 of 1967 has filed the Civil Miscellaneous Appeal against the order of the lower Court dismissing his I.A. No. 1803 of 1968, refusing to set aside the exparte preliminary decree passed on. 7th July, 1967. He and his sons have brought the regular appeal against the ex parte decree itself.;