Jagdish Sahai, J. - (1.) A decree in suit No. 181 of 1951, of the Court of 1st Additional Civil Judge, Kanpur, was obtained against the father of the plaintiff-appellants by the respondents and in the execution of the same some houses were attached. The plaintiff-appellants filed the suit giving rise to this appeal and prayed for the following reliefs on the allegation that the father of the plaintiff-appellants was a man of deficient mind and inasmuch as no guardian ad-litem had been appointed to protect his interests in the suit, the decree passed in suit No. 181 of 1951 was a nullity: "The plaintiffs, therefore, prayed for the following reliefs:- A. It be declared that the decree in suit No. 181 of 1951 of the Court of 1st Civil Judge, Kanpur, Motilal and Ors. v. Madan Behari Lal is not enforceable against house No. 22/2, Filkhana, Kanpur, 55/59, Kahoo Kothi, Kanpur, and premises No. 84/57, Jarib ki chauki, G. T. Road, Kanpur known as Indian Distillery and especially against the plaintiffs' rights and interest therein and is void against the plaintiffs. B. Costs of the suit be allowed to the plaintiffs. C. Any other relief the Court thinks fit and proper to grant in the circumstances be granted to the plaintiffs."
(2.) The suit was valued at Bs. 83,424/8/9 and a court-fee of Rs. 1,293/- was paid which was calculated on the one fifth value of the property. An objection was taken in the trial Court that the court-fee paid was insufficient but that question was not finally decided as the Court rejected the plaint on the ground that it disclosed no cause of action. Against the decree of the trial Court rejecting the plaint and dismissing the suit the present appeal was filed. In this Court. The relief claimed in the appeal is that the case be remanded for trial on merits according to law. In this Court a court-fee of Rs. 1,682/8/- was paid. The Stamp Reporter made a report that there was a deficiency in court-fee of Rs. 2,062/8/- in this Court and the same amount-in the Court below. The Stamp Reporter claimed that a sum of Rs. 4,125/- was due from the plaintiff appellants in connection with the court-fee payable in this Court as also in the Court below. The matter came up before a Division Bench of this Court where on behalf of the State of U.P., reliance was placed upon the U. P. Amendment to Section 7 (viii) of the Court-fess Act with the result that the Bench referred the following question for answer to a Full Bench: "Whether, in view of the U. P. Amendment to Section 7 (viii) of the Court Fees Act and the enlargement of the scope of the said sub-section, a suit of the present nature involving a relief that the decree is not enforceable against the attached property without any orders of the Court under Order XXI, Rules 60, 61 and 62 is covered by the provisions of the said sub-section?"
(3.) Section 7 (viii) of the Court Fees Act, as amended by the U. P. Amendment Act XIX of 1938, reads as follows: "In suits to set aside or to restore an attachment including suits to set aside an order passed under Order XXI, Rules 60, 61 or 62, C. P. C., according to half of the amount for which attachment was made, or according to half of the value of the property or interest attached, whichever is less. Explanation--The value of the property or interest for the purposes of this sub-section shall be the market value which in the case of immovable property or interest in such property shall be deemed to be the value as computed in accordance with Sub-sections (v), (v-A) or (v-B), as the case may be." Prior to the amendment the section read as follows: "In suits to set aside an attachment of land or of an interest in land or revenue--according to the amount for which the land or interest was attached: Provided that, where such amount exceeds the value of the land or interest, the amount of fee shall be computed as if the suit were for the possession, of such land or interest.";