K LOGANTHAN Vs. RAJALAKSHMI

JUDGEMENT

(1.) THIS revision has been preferred by the revision petitioner/plaintiff challenging the return of the Plaint for payment of court fee under Section 40(1) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955.

(2.) ACCORDING to the revision petitioner/plaintiff, pursuant to a money decree, a bungalow situated in Court Road, Cuddalore was brought to auction in E.P.No.21 of 2000 in O.S.No: 790 of 1999. The revision petitioner/plaintiff was the successful bidder and he deposited a sum of Rs.11,55,000/= into court. The sale was confirmed on 3.12.2003. Nine ordinary judgment debtors shared the consideration deposited into the court. This had happened in the year 2003-2004. Thereafter it came to light that the 11th defendant in the present suit (SR.8695/2006) had filed even in the year 2000 O.S.No:166 of 1999 against the same judgment debtors. That suit was on a mortgage. The final decree in the suit was also passed on 8.12.2005. Even though the said suit was instituted, preliminary and final decrees were passed in the same court, in which the Execution Proceedings also took place, the pendency of the mortgage suit was not disclosed at all. Thus the 11th defendant as a mortgage decree holder has sought to bring the same property purchased by the petitioner for execution to satisfy the mortgage decree. It is in the present circumstance, the present suit has been filed by the revision petitioner/plaintiff, who is the purchaser of the property in the court auction with a prayer that various orders passed rateably paying the sale proceeds to the decree holders be set aside under section 73 CPC and consequently to direct the defendants to refund the monies received by them in the Execution Proceedings so that it could be rateably redistributed after satisfying the mortgage decree. ACCORDING to the plaintiff, the suit is maintainable under Section 73(2) CPC.

(3.) AS seen from the plaint papers, it is seen that originally the suit has been filed on the file of the Subordinate Judge, Cuddalore. The learned Subordinate Judge, Cuddalore after making several returns and representation of the plaint, ultimately by order dated 6.9.2006, returned the plaint with a direction to file the same before proper court holding that since the suit is to be valued on the market value of the suit property viz., under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act, the Subordinate Judge's Court does not have the pecuniary jurisdiction to entertain the suit. Thereafter the Plaint was presented before the learned Principal District Judge. The learned Principal District also returned the papers as to the maintainability of the suit and also the court fees payable on the said suit. Learned counsel for the plaintiff placing reliance on the decision of this Court in C.P.Vasantarajan and others Vs. Rani Parvathammani Garu and others (1953 (II) MLJ 493) represented the papers that the suit is maintainable under Section 73(2) CPC and also stating that only Section 50 of the Court Fees Act applies and not Section 40 of the Act. However, by the impugned order, the learned Principal District Judge, Cuddalore returned the Plaint holding that the suit is for setting aside the orders pased in E.AS in O.S.No:190 of 1999 and refund of money, Section 40 of the Court Fees Act only attracted in the instant suit and therefore the court fee has to be paid as provided for in Section 40 of the said Act. Aggrieved over the same, the present revision has been filed by the plaintiff.