SARADA AMMA Vs. EACHKUTTY NAIR

JUDGEMENT

(1.) The appeal is filed against the final decree in a suit for partition. Court fee is paid under Schedule II Article 3(ii)(A)(1)(a) of the Kerala Court Fees and Suits Valuation Act. The Registry has raised an objection that the appeal being against the final decree, court fee should be paid under section 37(2) of the Court Fees and Suits Valuation Act. It is also stated that the valuation shown in the Memorandum of Appeal is incorrect.

(2.) Learned counsel for the appellant submits that the application for final decree being an interlocutory Application, the decree passed therein is to be treated as an order and if so, Schedule II Article 3(iii)(A)(1)(a) of the Court Fees and Suits Valuation Act (hereinafter referred to as the 'Act) applies. Section 37(1) of the Act provides that in a suit for partition and separate possession of the share of the plaintiff, he shall pay court fee, computed on the market value of his share, if he has been excluded from possession of the property. If the plaintiffs is in joint possession, fixed court fee as provided under Section 37(2) of the Act shall be paid. Section 52 of the Court Fees and Suits Valuation Act states that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal. The first proviso to Section 52 states that in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree. Though the final decree is passed in an interlocutory Application, such decree directing division of shares by metes and bounds would satisfy the requirement of a decree under section 2(2) of the Code of Civil Procedure. A final decree for partition is appealable under section 96 of the Code of Civil Procedure. Section 2(2) of the Code of Civil Procedure defines "decree" thus:

(3.) Section 97 of the Code of Civil Procedure states that where any party aggrieved by a preliminary decree passed does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The aforesaid provisions of the Code of Civil Procedure and the Kerala Court Fees and Suits Valuation Act would lead us to the conclusion that an Appeal against the final decree for partition is an appeal from a decree and not an appeal from an order and that the Appeal shall be valued and court fee paid under Section 37 read with Section 52 of the Kerala Court Fees and Suits Valuation Act. We are not inclined to accept the contention of the counsel for the appellant that the final decree passed in a suit for partition is to be treated as an order capable of being appealed against as an Appeal from an order and capable of being valued under Schedule II Article 3(iii)(A)(1)(a) of the Kerala Court Fees and Suits Valuation Act. Registry is right in its objection.