B.D. Gupta, J. - (1.) THIS is an application in revision Under Section 6 -B of the Court Fees Act (hereinafter referred to as the Act) by the Chief Inspector of Stamps. It arises out of an order passed by the Civil Judge, Shahjahanpur, on 12 -3 -1966, whereby the learned Judge took the view that the court -fee paid on the plaint, giving rise to original suit No. 1 of 1965, Firm Rameshwar Prasad Mahboob Hasan Khan v. Chandra Datt and Ors. was sufficient.
(2.) FIRM Rameshwar Prasad Mahboob Hasan Khan, hereinafter referred to as the decree -holder, obtained a decree in Suit No. 6 of 1962 of the Court of the Civil Judge, Shahjahanpur, on 15 -1 -1963. Chandra Datt, the first Defendant in the suit was the judgment -debtor under that decree. In execution of the said decree a house and some land were attached whereupon the second Defendant Upendra Datt filed an objection Under Order 21, Rule 58 of the Code of Civil Procedure. The case set forward by Upendra Datt, hereinafter referred to as the objector, was that the attached property had been purchased by him (the objector) from the judgment -debtor under a registered sale deed of 1954 and that he was in possession since then and the property was, therefore, not liable to attachment and sale in execution of the decree against Chandra Datt. Evidence was led by the parties and by order dated 1 -2 -1964, the learned Civil Judge allowed the objection and set aside the attachment. Thereafter the decree -holder filed the suit in the course of which the order sought to be revised by this petition was passed. This suit, there is no controversy, is of the nature contemplated by Rule 63 of Order 21 of the Code of Civil Procedure. Two reliefs have been claimed, firstly, that the sale deed executed by the judgment -debtor in favour of the objector in 1954 be declared void and ineffectual and secondly, that it be declared that the property in question was liable to attachment and sale in execution of the decree in Suit No. 6 of 1962. In the plaint the value of the property in suit has been shown as Rs. 6,000/ -. In regard to the first relief, no objection as to the amount of court fee paid thereon was raised, but in regard to the second relief, report of the Inspector of Stamps was that court fee in a sum of Rs. 200/, which had been paid in regard to that relief, was insufficient. This objection was based on the assertion that the said relief was covered by Clause (viii) of Section 7 of the UP Court Fees Act which runs as follows: In suits to set aside or to restore an attachment including suits to set aside an order passed Under Order 21, Rule 60, 61 or 62 of the Code of Civil Procedure... According to half of the amount for which the attachment made, or according to half of the value of the property or interest attached, whichever is less. (Thereafter follows an explanatory clause which need not be set forward for the purpose of this revision). The aforesaid objection has been overruled by the learned Civil Judge on the view that Clause (viii) of Section 7 of the Act did not cover the present case and the question which arises for consideration is whether the view taken by the learned Civil Judge is correct. After hearing learned Counsel for the Applicant and scrutinising the language of the Statute I am inclined to agree with the view taken by the learned Civil Judge.
(3.) LEARNED counsel for the Applicant urged that the order of the learned Judge dated 1 -2 -1964, whereby objector's objections Under Order 21, Rule 58 Code of Civil Procedure were accepted and the attachment was set aside, was an order Under Rule 60 of Order 21 Code of Civil Procedure and further, that in substance the present is a suit to restore an attachment. Rule 60 of Order 21 Code of Civil Procedure provides, inter alia, that where upon investigation of an objection Under Rule 58 the court is satisfied that, for reasons stated in the claim or objection, the property was not, when attached, in the possession of the judgment -debtor the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment. The reason stated in the claim set forward by the objector was that he had purchased the property from the judgment -debtor under a registered sale deed executed by the judgment -debtor in 1954 and the judgment -debtor was not in possession on the date on which the property was attached. In the order of the learned Civil Judge dated 1 -2 -1964, satisfaction of the court that at the time of attachment the property was not in the possession of the judgment debtor was recorded and in consequence thereof the court accepted the objection Under Order 21, Rule 58 Code of Civil Procedure and set aside the attachment. I am, therefore, inclined to accept the contention that the order of 1 -2 -1964, was an order passed Under Rule 60 of Order 21 of the Code of Civil Procedure. A reference to this order has been made in para 3 of the plaint and in para 10 of the plaint the cause of action is alleged to have arisen on the date on which the aforesaid order was passed. However the relief claimed in the suit does not refer to the order dated 1 -2 -1964, but is in accordance with what is contemplated by Rule 63 of Order 21 Code of Civil Procedure viz. to establish the right which the Plaintiff claims to the property in dispute. It may, therefore, be debatable whether the present suit should be treated as a suit to set aside an order passed Under Order 21, Rule 60 Code of Civil Procedure. The Court Fees Act is a fiscal Statute and as was observed by a Full Bench of this Court in the case of Om Prakash v. Motilal, 1962 AWR 152, "it is trite that it has got to be strictly construed against the State and in favour of the subject." It may very well be that by using the expression "suits to set aside an order passed Under Order 21, Rules 60, 61 or 62 of the Code of Civil Procedure" in Clause (viii) of Section 7 of the Act, the legislature intended to cover suits contemplated by Rule 63 of Order 21 of the Code of Civil Procedure, but if that was the intention of the legislature, it does not appear to have been incorporated in the language of the Statute. To carry out that intention there was nothing easier for the legislature than to use the expression 'or' instead of the expression "suits to set aside orders passed Under Order 21, Rules 60, 61 or 62 of the Code of Civil Procedure.";