MALJI S/O KESOORAMJI Vs. KESRIMAL RAKHABDAS

JUDGEMENT

(1.) THIS revision petition raises a question as regards the applicability of Section 7 (iv) (c) of the Court Fees Act. Particularly it raises the question as to whether a person who is not bound by the decree can make his own valuation for claiming a permanent injunction with reference to the decree.

(2.) THE facts necessary for the purpose of the present petition are as follows : the petitioners filed a suit against Gangaram and Babulal respondents nos. 2 and 3 for recovery of money. The suit was filed on 23-10-1954. An order for attachment before judgment in respect of the property of the defendants was passed and the property was attached. While the suit was pending Kesrimal makes a claim against his father-in-law and brother-in-law viz. Gangaram and Babulal to the tune of Rs. 11,000/ -. A reference is made by mutual agreement between the parties and an award is passed on 22-10-1954 creating a charge upon the house which was later on attached a day after. It may be mentioned here that according to the petitioners who were the plaintiffs in the suit filed by them against Gangaram and Babulal they had given notices to their debtors for recovery of their debts. Proceedings were taken subsequent to the passing of the award for making it the rule of the Court and on 5-11-1954 a decree on the basis of the award was obtained. This decree was put into execution by Kesrimal against his father-in-law Gangaram and brother-in-law Babulal and he sought to sell the house which was already charged under the decree on the basis of the award. A date was fixed for the sale of the property which was 27-6-1956. The petitioners thereupon filed the present suit impleading Kesrimal, Gangaram and Babulal for a declaration that the decree obtained by Kesrimal against gangaram and Babulal on the basis of the award was collusive and sham and was not binding upon the plaintiff nor did it affect the attachment effected by him in his suit before the judgment. A permanent injunction was also asked for restraining kesrimal from executing his award-decree against Gangaram and Babulal with reference to the house under attachment. This suit was filed as one for declaration and permanent injunction and the plaintiffs valued the claim for the purpose of relief of permanent injunction at Rs. 20/ -. They valued the relief with regard to the declaration at Rs. 11,000/- for the purpose of jurisdiction. Fixed court-fee of Rs. 20/- was paid as on a suit for declaration simpliciter.

(3.) THE defendants inter alia raised the contention that the court-fee paid by the plaintiffs-petitioners was inadequate. They ought to have paid advalorern court-fee on the total amount of claim in the award decree i. e. on Rs. 11,000/ -.