PADMINI Vs. C.O.MARYKUTTY

JUDGEMENT

(1.) Should court fee be paid under the Kerala Court Fees and Suits Valuation Act, 1959 (the 'Act' for short) on the market value of the property in a claim petition preferred under Rule 58 of Order XXI of the Code of Civil Procedure, 1908 (the 'CPC' for short) The petitioner herein had preferred a claim under Rule 58 of Order XXI of the CPC when the subject property was attached in execution of a decree obtained by the first respondent against the second respondent. The execution court however rejected his claim petition on the ground that no valuation statement had been filed and that the same ought to have been valued akin to a plaint in the suit. The execution court relied on Section 17 of the Act which reads as follows:

(2.) I heard Mr. S. Ananthakrishnan, Advocate on behalf of the petitioner and Mr. George Joseph Ittankulangara, Advocate on behalf of the first respondent.

(3.) All questions relating to right, title or interest in the property attached arising between the parties to a proceeding or their representatives shall be determined by the court dealing with the claim or objection and not by a separate suit. The execution court in accordance with its determination can allow or disallow the claim or objection and release the property from attachment either wholly or partly or pass such other order as the circumstances deem fit. The order made adjudicating the claim or objection shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. I would have relegated the petitioner to file an appeal had the claim been adjudicated on merits or to a suit had the claim petition been not entertained by the execution court. But the instant case is one where the claim petition had been rejected as defective for alleged non-payment of sufficient court fee which could of course be scrutinized in an Original Petition of this nature.