PALANISWAMI Vs. SUBBARAYA GOUNDER

JUDGEMENT

(1.) THIS petition is filed by the plaintiff in O. S. No. 120 of 1969, on the file of the Sub Court, Erode, questioning the order of the court below directing him to pay additional court -fee. The petitioner filed the suit for partition and separate possession against his father. He impleaded certain creditors who had obtained money decrees against his father as defendants and prayed for a declaration that the debts are not binding on him. So far as the relief of declaration that the debts are not binding on him is concerned, the petitioner valued the relief under Section 25(d) at Rs. 400 and paid court fees on that basis. The creditor -defendants objected to the valuation and contended that the relief of declaration should have been valued and Court -fee paid on the amount for which the decrees were obtained. After hearing the parties, by an order dated 8 -10 -1973, the court below held that no additional court -fee need be paid. Subsequently, one of the creditors filed I. A. 1014 of 1973, praying for a review of the order dated 8 -10 -1973, on the ground that subsequent to the order, in the decision reported in Shamsher Singh v. : [1974]1SCR322 the Supreme Court held, in a similar matter, that court -fee is payable ad valorem on the amount for which the decrees were obtained. Accepting this contention and in view of the judgment of the Supreme Court the Court below has held that the court -fee is payable ad valorem on the amount for which the decrees were obtained, under Section 40 of the Court -fees Act. The petitioner had raised before 'he lower court the contention that the court had no jurisdiction to review the order at the instance of a creditor -defendant in view of its earlier order dated 8 -10 -1973, which was made after hearing the defendants as well as the plaintiff. The court below overruled this objection of the plaintiff -petitioner as well.

(2.) IN this revision petition, the learned counsel for the plaintiff -petitioner contended that the petition for review filed by one of the creditor -defendants was not maintainable and that the order passed on it by the court below was one without jurisdiction.

(3.) THUS the defendant had no right to file a review petition before the court below.