VENKATACHALA MUDALIYAR Vs. BALAMBAL

JUDGEMENT

(1.) This civil revision petition at the instance of the respondent in 0. P. 13 of 1981, District Munsif's Court, Villupuram, has been preferred against the order dismissing the application filed tinder Ss. 151 and 152, C.P.C., praying for an amendment of the decree. 0. P. 13 of 1981 was an application filed by the respondent herein under S. 17(l) of the Tamil Nadu Act XL of 1979 (hereinafter referred to as the Act) praying for a declaration of the amount due under a promissory note executed by the petitioner, who was a debtor under the Act. On 25-2-1984, after a consideration of the evidence led in by both sides, the learned District Munsif declared the amount due by the petitioner to the respondent at Rs. 14339 with interest at 9%) per annum on Rs. 8800 from the date of the filing of the 0. P. viz. 8-9-1979 and subsequent interest at WYO per annum, till date of the discharge. 15 days time was granted to the respondent for the payment of court-fee and there is no dispute now that the respondent paid a sum of Rs. 107550 as court fee on the amount declared and also obtained a decree under S. 17(5) of the Act, However, in- the decree, a sum of Rs. 880 was also included as counsel's fee. The petitioner filed I.A. 53 of 1984 under Ss. 151 and 152, C.P.C. claiming that the declaration of the amount due under S. 17(4)(a) of the Act would not amount to a decree and that since the proceedings were commenced by the filing of an 0. P., the counsel's fee should not have been allowed at Rs. 880, as in a suit, but should have been fixed only either at Rs. 35 or Rs. 50, as in the case of 0. Ps. generally. Besides, the petitioner also claimed that the court fee of Rs. 1075-50 included in the costs should also be deleted. Accordingly, the petitioner prayed that the decretal order should be amended in the manner claimed by the petitioner.

(2.) That application was resisted by the respondent herein who contended that the Court fee and counsel's fee included in the decree were in accordance with the provisions of the Act as well as the Legal Practitioners' Fees Rules and that no case for amendment as prayed for by the petitioner was made out. The respondent also put forth the plea that only after the payment of Court fee she had obtained a decree under the Act and, therefore, the petitioner was not in order in claiming that the adjudication secured by the respondent after the payment of the Court fee did not have the effect of a decree as such.

(3.) The learned District Munsif, Villupuram, who enquired into this application, was of the view that the inclusion of the 'Court fee paid by the respondent and the counsel's fee was in accordance with the provisions of the Act and the Legal Practitioners' Rules and. therefore, no case for amending the decree has been made out. In that view, I.A. 53 of 1984 in 0. P. 12 of 1981 was dismissed. It is the correctness of this order that is challenged in this Civil revision petition.