RADHABAI W/O. KRISHNARAO APPALWAR Vs. MADHORAO BALAJI CHANDE

JUDGEMENT

(1.) IN execution of decrees against Satyanarayan, defendant 5, the judgment-creditors attached certain property. The plaintiff preferred an objection to that attachment Under Order 21, Rule 58, Civil P.C., and after that objection had been dismissed instituted the present suit Under Order 21, Rule 63 asking that the summary order should be set aside and that it should be declared that the property was not liable to attachment and sale in execution of those decrees. The decretal amounts were somewhat less than Rs. 1400. The plaintiff valued her interest in the attached property at Rs. 2800, though according to the defendants it was worth about Rs. 7000. The Court in which the suit was instituted held that the value of the suit for purposes of jurisdiction was the value of the property attached, which even according to the plaintiff was Rs. 2800, which was in excess of its jurisdiction. That decision was upheld by the Additional District Judge. The lower Courts relied on certain remarks made in Narayan v. Bhioraj (06) 2 N.L.R. 87 where Batten, A.J.C. stated: In a suit Under Section 283, Civil P.C., (which corresponds to Order 21, Rule 63) if the value of the property attached exceeds the value of the decree, then if the judgment-debtor as well as the judgment-creditor and intervenor is a party to the suit, the suit should be valued according to the value of the property, since the plaintiff seeks to establish his claim to that property against the judgment-debtor as well as against the judgment-creditor.

(2.) THAT remark however was obiter because in that case the decretal amount considerably exceeded the value of the property attached. The learned Additional Judicial Commissioner referred to the decisions in Modhusudan Koer v. Rakhal Chunder Roy (88) 15 Cal. 104, Fulkumari v. Ghanshyam Misra (09) 31 Cal. 511, Dwarka Das v. Kameshar Parsad (95) 17 All. 69 and Dhan Devi v. Zamurad Begam (05) 27 All. 440, Dwarka Das v. Kameshar Parsad (95) 17 All. 69 however is the only decision that supports the above dictum, and that has been overruled in Moolchand Motilal v. Ram Kishen . In Modhusudan Koer v. Rakhal Chunder Roy (88) 15 Cal. 104 in which the decree holders were the plaintiffs, it was held that the value of the suit for purposes of jurisdiction was the value of the decree which was considerably less than the value of the property attached, and where the decree-holder is the plaintiff that view is, I think, clearly correct. In Fulkumari v. Ghanshyam Misra (09) 31 Cal. 511 the plaintiffs sued for a declaration, Under Section 283, of his title to and possession of the property attached and for a perpetual injunction restraining the sale in execution of the decree; it was held that the plaintiff must pay ad valorem court-fee on the decretal amount, which was less than the value of the property attached. That decision can no longer be considered good law in view of the decision in Phul Kumari v. Ghanshyam Misra (08) 35 Cal. 202 which lays down that in such a case Article 17 of schedule 2, Court-fees Act, applies; but, in any case, it does not support the dictum in Narayan v. Bhioraj (06) 2 N.L.R. 87. In Dhan Devi v. Zamurad Begam (05) 27 All. 440 where the amount of the decree was less than the value of the property, and where the decree-holder was the plaintiff, it was held that the value for jurisdiction was the amount of the decree, which was less than the value of the property attached.