APPIKUNJU MEERASAYU Vs. MEERAN PILLAI

JUDGEMENT

(1.) IN this revision Mr. K. S. Paripoornan learned counsel for the plaintiff challenges the order of the learned Subordinate Judge, attingal directing the plaintiff to state the value of the property which is the subject of the suit and to pay the necessary court-fees under S. 40 (1) of the Kerala Court fees Act. The plaintiff purchased the property in question on 27101952 from the second defendant for a sum of Rs. 15,000' -.

(2.) THE first defendant instituted O. S. 21/1125, Munsiffs Court, Nedumangad against the second defendant for recovery of possession of the properties. Notwithstanding that the suit appears to have been dismissed for default in the first instance on 19121952, the first defendant filed an application in that suit for restoration which again was dismissed on 18 81953. But the first defendant appears to have filed a second application for restoring the suit which had been dismissed for default. But in respect of that proceeding it is seen that the second defendant appears to have been exparte and ultimately the suit itself was directed to be restored and decreed in favour of the first defendant on 111155 against the present second defendant who was exparte. As in the mean while, the plaintiff had purchased the property on 2710 52 and as he apprehended that the decree in o. S. 21/1125 may hurt his rights, he instituted the present suit O. S. 3/62, sub-Court Attingal for a declaration that the decree obtained in O. S. 21/1125 does not bind him and also has asked for a further relief by way of setting aside the decree in 0. S. 211125.

(3.) THE plaintiff no doubt appears to have raised objection to this note put up by the court fee examiners, but the learned subordinate Judge by his order dated 7th March 1963 has taken the view that the plaintiff seeks a substantial relief by way of cancelling the decree in O. S. 21/1125 and for cancellation of such a decree he has to pay court fees under s. 40 (1) of the Court Fees Act. THErefore in consequence the learned judge is of the view that court fee has to be paid by the plaintiff on the value of the property in respect of which the decree has been passed. Accordingly the plaintiff has been directed to give the value of the property on the date of the suit for which purpose requiring him to pay the necessary court fees under S. 40 (1) of the Kerala Court Fees Act.