JONNALAGADDA SATYANARAYANA Vs. JONNALAGADDA YEDUKONDALA RAO

JUDGEMENT

(1.) The point involved in this revision is within a brief compass. For arrears of income tax and on a certificate under Section 46 of the Indian Income tax Act, the Collector, West Godavari, attached the properties standing in the name of the 1st defendant, Jonnallagadda Yedukondala Rao. Thereupon the present petitioners filed the suit (O.S. 18 of 1957) for partition of the property attached and for the raising of the attachment. With respect to the prayer for partition, a court-fee of Rs. 200/- was paid under Section 34 of the Andhra Court Fees Act of 1956. There was a controversy as to the proper fee payable with respect to the prayer for the raising of the attachment. The case of the petitioners is that a fixed court fee under Article 17 (b), Schedule II is payable and that the court fee should not be computed as under Section 38 (2) of the Court Fees Act.

(2.) The learned District Judge held that the court-fee was payable under Section 38 (2) and for the purpose of determining the market value he directed the appointment of a Commissioner. The present revision petition is directed against that order.

(3.) Mr. Rajeswara Rao, the Learned Counsel for the Petitioners has argued firstly, that Section 38 of the Court Fees Act will not apply, as on the terms of that section, it can only apply to a court, civil or revenue, and not to an attachment passed by a Collector acting on a certificate under Section 46 of the Indian Income tax Act who would be only a persona designata, and secondly, if on the terms of Section 46 of the Indian Income tax Act, the powers of the Collector are those of a Court under the appropriate provisions of the Civil Procedure Code, the present suit should be deemed to be a suit for the establishment of a claim, and accordingly, a fixed court fee alone is payable.