PRASHI Vs. SYNDICATE BANK

JUDGEMENT

(1.) This appeal is preferred under S. 96 read with O. 21, R. 43A of the Civil P.C. against the order dated 20/11/1987 passed by the learned II Additional Civil Judge, Mangalore on I.A.VII filed in O.S. No. 146/83. The aforesaid suit was filed by the first respondent against respondents 2 to 6. The appellants 1 and 2 herein are not parties to the suit. The appellant No. 3, though he was a party to the suit and a decree was passed against him, with the permission of the Court has been transposed as respondent No. 6. Thus this appeal is by appellants 1 and 2 who were not parties to the suit. The trial Court decreed the suit against respondents 2 to 6 herein who were defendants 1 to 5 in the suit for a sum of Rs. 6,01,287-35 Ps being the amount due to the plaintiff-bank. During the pendency of the suit the fishing boat in question was ordered to be seized as it was hypothecated to the plaintiff-bank and was entrusted to appellants 1 and 2 and the 6th respondent herein. During the pendency of the suit the plaintiff-bank made an application (I.A.VII) requesting the Court to forfeit the bonds under O. 21 R. 43A(2) of the C.P.C. (hereinafter referred to as the 'Code'). This application was also heard and decided along with the suit. The trial Court allowed the application, forfeited the bonds and directed the sureties (the appellants 1 and 2 herein) and also the 5th defendant to pay to the plaintiff-bank a sum of Rs. 6,00,000/- being the value of the boat entrusted to their custody. The suit was also decreed against all the defendants as prayed for by the plaintiff with costs.

(2.) Now the point for consideration is as to whether the appellants are liable to pay the Court-fee on the sum of Rs. 6,00,000/- or under Art. 3(iii) of the II Schedule to the Karnataka Court-fees and Suits Valuation Act, 1958 (hereinafter referred to as 'the Act'). Under Clause (c) of sub-rule (2) of R. 43A of O. 21, the order passed determining the liability of the sureties is appealable as a decree. Therefore, the office has raised an objection that the order is deemed to be a decree passed in the suit valued at Rs. 6,00,000/- and as such the appellants are liable to pay Court-fee on the sum of Rs. 6 lakhs on the Memorandum of Appeal.

(3.) The proceeding contemplated under R. 43A(2) of O. 21 of the C.P. Code is not a 'suit' though it is intended to determine the liability of the custodian of the attached property, in case the property is not in the same condition as it was when it was entrusted to him. However, the order determining such liability is made appealable as a 'decree'. Thus only for the purpose of preferring an appeal, the order is deemed as a 'decree'.