NARESH Vs. KAUSHILYA

JUDGEMENT

(1.) This execution second appeal has been dismissed by the Additional District Judge on the ground of non- compliance of order of the Court to make up deffeciency in the Court fee.

(2.) Briefly put, the appellants filed an objection petition under Order 21 Rule 58 of the Civil Procedure Code (for short 'the Code') that they be not evicted from the land in dispute as they are in possession of the same in their own right. According to the objectors, Smt. Kaushilya entered into an agreement of sale of the suit land with them along with others for a consideration of Rs. 6000/- per acre and a sum of Rs. 24,000/- was paid by them. In pursuance to this agreement, all of them were put in possession and now have become owners in possession of the disputed land. It is subsequently that decree was passed against Kaushilya which is now subject matter of execution without impleading the objectors and so such a decree does not bind them in any manner. The Executing Court *found no merit in the plea of the objectors and so dismissed the objection petition vide order dated 6.9.1990. An appeal was preferred before the District Judge wherein an objection was raised as to whether correct Court fee has been affixed upon the memorandum of appeal. Additional District Judge came to the conclusion that since the suit is for recovery of Rs. 35,000/-, the appellants have to affix Court fee of Rs. 4870/- on this appeal. This order was passed on 5.2.1994 directing the appellants to make up the deficiency in the Court fee on or before 3.3.1994. Since the appellants could not make up deficiency in the Court fee within the time stipulated, a request was made to enlarge the time and ultimately since deficiency in the Court fee was not made upon, the appeal was ordered to be rejected vide order dated 3.3.1994.

(3.) The appellants feeling aggrieved by the orders dated 5.2.1994 and 3.3.1994 has filed this appeal challenging their validity. According to the learned counsel for the appellants, the Additional District Judge has erred in law in ordering affixation of Court fee Rs. 4870/- (Ad valorem Court fee upon Rs, 35,000/-) as it was not the case of the appellants that decree be set aside.