Krishna Rao, J. -
(1.)This appeal is filed by defendants i to 3 against an order dated 23rd November, 1964, passed by our learned brother Manohar Pershad, J., in C.M.P. No.1014 of 1964 refusing to amend the decree in A.S. No. 263 of 1960. The respondent-temple represented by its trustees, filed a suit O.S. No. 43 of 1959 in the Court of the Subordinate Judge, Rajahmundry for recovery of possession alleging that the defendants were archakas and were in possession as de facto trustees. In view of these allegations, the plaint was valued for purposes of Court-fee as well as jurisdiction under section 27 (1) of the Andhra Court-fees Act (1956) which reads as follows :-
"Section 27 (1).-In a suit for possession or joint possession of trust property or for a declaration, without consequential relief, between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee, fee shall be computed on one-fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the property has no market value on rupees one thousand. (2) * * * * *"
(2.)As the value of the entire subject-matter of the suit was stated to be Rs. 52,600, the value of the suit was put in the plaint as one-fifth thereof, that in Rs. 10,520, and Court-fees is computed ad valorem and a maximum Court-fee of Rs. 200 was paid as per the above section. The suit having been decreed with costs, by the trial Court, the defendants filed the appeal A.S. No. 263 of 1960 in this Court. The said appeal was also dismissed with costs. In the decree, this Court allowed a sum of Rs.2,185 towards the junior and senior fees fixing the practitioner's fees on the value of the entire property, namely Rs. 52, 600 though the actual value of the appeal was put down as Els. 10,520 as in the lower Court. Aggrieved by this direction as to costs, the defendants who were appellants in the first appeal A.S. No. 263 of 1960, filed C.M.P. No.1014 of 1964 under section 152, Civil Procedure Code, to amend the decree by substituting Rs. 832 towards the advocate's fees taxed on the basis of Rs.10,520, the value stated in the plaint and in the appeal in place of the sum of Rs. 2,185 granted in the decree. The application was contested on the ground that Advocate's fee should be taxed on the value of the entire subject-matter of the appeal and not merely on the value stated in the appeal. The learned Judge dismissed the said application upholding the contention of the respondent that Advocate's fee should be taxed on the value of the entire subject-matter, viz. Rs. 52,600. Against the said order dismissing the application, the above appeal is filed under Clause 15 of the Letters Patent.
(3.)The learned Counsel for the appellants Sri N. C. V. Ramanujachari contended that Advocate's fees should be taxed as per rule 41 of the Legal Practitioners Fees Rules while the respondents seek to rely upon rule 38 of the said Rules. In order to appreciate the rival contentions, it is necessary to refer to the said rules. "Practitioners' Fees :- High Court-Second Appeals and First Appeals. Rule 38(1).-In the High Court, in appeals from Original or Appellate Decrees, in suits for money, effects or other personal property, or for land or other immovable property, of any description, fees are payable on the following scale- (a) when at the time of hearing, the appeal stands on the Ready Board- (i) if the amount or value of the claim does not exceed Rs. 5,000 at 7 per cent, subject to a minimum prescribed by rule 40. Rule 41.-The words ' the amount or value of the claim in rules 31 to 39 mean the value as set forth in the plaint, memorandum of appeal or cross objection or petition and, where Court-fees are payable ad valorem the value on which such Court-fees are paid. Where the claim does not admit or valuation but is valued for purposes of jurisdiction, the fee for practitioners shall unless the Court orders to the contrary, be calculated on such value according to the scale fixed in rules 31 and 32 above. Rules 31 and 32 which refer to Courts subordinate to the High Court also provide for payment of practitioner's fees on the amount or value of the immovable property as in rule 38. It is seen from the foregoing rules that the first part of rule 41 qualifies rule 38 and if the instant case falls under the first part of rule 41, it is not open to the respondents to rely upon the provisions of rule 38. But if the case falls under the second part of rule 41, it will be open to the respondents to rely upon rules 31 and 32, the provisions of which are similar to rule 38. As already stated, the claim in the suit is one for recovery of immoveable property which is capable of valuation and hence it was valued as one fifth of the total market value under section 27 (1). Hence the provisions of section 27 (1) in so far as they relate to property which has no market value, are not applicable.