PATEL DASHRATHBHAI MOHANBHAI AND OTHERS Vs. BHAGAT TRIKAMBHAI BHAILAL AND ANOTHER

JUDGEMENT

(1.) Different plaintiffs have filed two different, but almost identical suits against the common decree holder, the fendant No. 1 in both the matters who has got decree against two different judgment-debtors. Near relatives of the respective debtors, therefore, filed the said suits for raising the attachment effected by judgment-creditor against the respective debtor in respects of certain properties. The basis of the suit is that respective plaintiffs have share in these properties because of the properties beingJoint, Hindu Family properties and that, therefore, their shares in the suit properties are not liable to attachment and sale. The learned Judge thought that Ad valorem Court fees were required to be paid by recourse to Section 6(iv)(d) of the Bombay Court Fees Act, but the proviso appended to clause (d) is not taken note of by the learned Judge. The said proviso specifically mentions as an exception to the main proviso that if the question is of attachment with or without sale, the amount of fee shall be the ad valorem fee according to the value of the property sought to be protected from attachment with or without sale or the fee. of Rs. 15/- whichever is less so that ordinarily clause (d) will be attracted in respect of the suits for declaration in respect of ownership or nature of tenancy, title, tenure, right, lease, freedom or exemption from, or non-liability to attachment of immoveable property, the proviso, which is a sort of exception carved out of the main provision, deals dewith a special Situation. The only and substantial question in both the suits is pertaining to attachment of the suit property. So, the questions in both the suits fall under proviso to Section 6 (iv)(d).

(2.) The learned trial Judge, however, placed reliance on the judgment of Shamsher Singh v. Rajinder Prashad and Others, AIR 1973 SC 2384.....The Supreme Court (in the aforesaid decision) held that it was a suit in substance either for setting aside the decree or for declaration with the consequential relief of injunction, restraining the decree-holder from executing the decree against the mortgaged property and the plaintiff was liable to pay ad valorem court fees under Section 7(iv)(c) (of Court Fees Act, 1870). However, the provison appended to Section 6(iv)(d) of Bombay Court Fees Act does not seem to be there under the Central Court Fees Act, 1870. So, the Supreme Court, on facts was dealing with a different provision of law.