B BIKSHA REDDY Vs. G VENUNA BAI

JUDGEMENT

(1.) The question for my consideration in this revision is what is the court fee payable on an appeal filed against an order made under Order 21 Rule 97 C.P.C. The respondents 1 to 11 obtained a decree for possession of land againat the Medical Department, (jovernment of Andhra Pradesh. Hyderabad in OS No. 207 of 1951. They filed an execution petition under Order 21, Rule 35 C.P.C, for delivery of possession of the land. When the Bailiff of the Court went to the land for effecting delivery he found some constructions belonging to third parties. So, he returned the delivery warrant unexecuted. Thereupon the decree holders filed E A No. 6 of 1981 for removal of obstruction caused by respondents 2 to 27 in the petition and to deliver vacant possession of the land to them. The trial court dismissed the petition as against respondents 2, 3, 4, 10 to 14 26 and 27. The petition against the other respondents 5 to 9 and 15 to 25 was dismissed as not pressed. As against the order the decree holders (respondents 1 to11) filed an appeal in the Court of the Additional Chief Judge, City Civil Court, Hyderabad. They paid a court fee of Rs. 5/- under Schedule II Article 3 (iii) (i), (o) of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956, The appeal was registered as Civil Miscellaneous Appeal.

(2.) A preliminary objection was taken by the petitioners herein that a Civil Miscellaneous Appeal was net maintainable and Court fee has to be paid on the market value of the property involved in the appeal.

(3.) The learned Judge held that the appeal should be treated as an appeal under Section 96 C P C and it should be registered as an appal suit, but not as a Civil Miscellaneous Appeal. With regard to the court fee, he held, that since the appeal was filed against an order under Order 21, Rule 97 C P C a fixed court fee of Rs. 3/- was payable under Schedule II Article 3 Clause (i) of the Andhra Pradesh Court Fees and Suits Valuation Act. 1956. Questioning his order regarding court fees the petitioners have filed this revision.