PALURI VENKATASIVA RAO Vs. BODAPATI VENKATANARASIMHA SATYANARAYANAMURTHY

JUDGEMENT

(1.) This. Civil Revision Petition comes before us on the question what is the proper court-fee to be paid on the plaint in the suit concerned. In the plaint the prayers are for a declaration that the decree obtained by Defendant 1 in O.S. No. 302 of 1916 on the file of the Additional District Munsif of Bhimavaram is void, for setting aside that decree, if necessary, and for recovery of the property, covered by the decree. The Plaintiff valued the suit for court-fee as if it came under Clause (c) of Section 7(iv) of the Court Fees Act. The Defendants objected and said that in its nature this was a suit for the cancellation of the previous decree and that therefore the Plaintiff should pay court-fee under Section 7(iv-A) of the Act, i.e., under the new Sub-section introduced into the Act for this Presidency in 1922. The Subordinate Judge after hearing arguments on the question came to the conclusion that the suit was really one for possession of the property and therefore that it came under Section 7(v) of the Act and ordered court-fee to be paid accordingly. It happens that the same court-fee is due whether the suit comes under Section 7(v) as one for possession or under Section 7(iv-A) as one for cancellation of the previous decree.

(2.) The plaint alleges that the previous suit, O.S. No. 302 of 1916, was brought by Defendant 1, while the Plaintiff was a minor, for the recovery of some property, which the Plaintiff had inherited through his adoptive father, and that in that suit he was not properly represented because the guardian appointed for him, his adoptive mother, had an interest adverse to his in the suit and moreover she colluded with the present Defendant 1 in that suit and enabled him by suppression of facts fraudulently to obtain a decree. Now I do not think it can be seriously disputed, and in the end it has not been disputed before us, that, if this suit is properly described as a suit for setting aside the previous decree, then it is a suit for cancellation of that decree as the word "cancellation" is used in the new Section 7(iv-A.) of the Court Fees Act. That Sub-section speaks of the cancellation of a decree or other document, which appears to mean the same thing as setting aside a decree or other document. It may be noticed that in Art. 91 of the Limitation Act "to set aside" and "to cancel" a document are used as synonymous terms. But what is contended for the Plaintiff here is that his suit is not a suit for setting aside the previous decree, but that it is a suit for a declaration with consequential relief and therefore he can avoid the additional charge which would fall upon him if his suit were a suit for cancellation of a previous decree for the recovery of property under Section 7(iv-A) of the Act. Mr. Somasundaram for the Plaintiff relies upon the decision of Ramesam, J., in Balakrishna Nair V/s. Vishnu Nambudri 1930 M.W.N. 509 There the learned Judge said that in the case of decrees the proper prayer is not to set the decrees aside but for a declaration that the decrees are not binding on the plaintiffs; and he added that therefore the suit before him was one for a declaration and consequential relief, and he allowed it to be valued for court-fee under Section 7 (iv)(c). On the facts of that case, as the learned Judge understood them, it appears that some minor Plaintiffs were suing for a declaration that a decree obtained against their karnavan and against other minor members of their family was not binding on them and for recovery of property sold in execution of that decree. If that was the nature of the suit, then I do not think it can be disputed that the learned Judge was, right in saying that the Plaintiffs there had to pray for no more than a declaration that the previous decree was not binding on them and the consequential relief of recovery and that it was not appropriate for them to ask that that decree, to which they had not been parties, should be set aside. But undoubtedly the learned Judge's remarks, which I have quoted, are much wider than that, and they imply that in his opinion in this country a Plaintiff who wishes to impeach a previous decree, to which he has been a party, as not binding on him should pray, not that the decree be set aside, but for a declaration that it is not binding on him. In one sense it may be that it is more appropriate for a Plaintiff, who wishes to impeach a decree obtained against him in a previous suit as having been obtained by fraud, to ask for a declaration that that decree is not binding on him than that he should ask that the decree itself should be set aside. There may even seem to be some impropriety in going to an inferior Court, as in some such cases he must, and praying that that inferior Court should set aside the decree of a superior Court. I myself have been inclined to think that, as Ramesam, J., appears to have thought, it is more appropriate in such cases to word the prayer as one for a declaration that the previous decree is not binding on the Plaintiff. But is that more than a question of mere propriety and seemliness? In such a second suit, if the Plaintiff succeeds, is not the effect and essence of what he obtains exactly the same, whether it is called setting aside the previous decree or declaring that the previous decree is not binding on him? In either case the result of the second decree is that the first decree is no longer binding on him: it is no longer of any avail against him: so far as he is concerned, it is wiped out. If that is so, is it in any way incorrect to speak of setting aside the previous decree, whether that setting aside is done by a Court superior to that which made the first decree or co-ordinate or interior? In this country the expression "to set aside a decree" as a description of a suit has been used in the Limitation Acts since 1859. That expression is well known as the description of such suits in England. In Flower V/s. Lloyd (1877) 6 Ch. D. 297 two of the Lords Justices explicitly point out that, if a decree or a judgment is to be impeached for fraud, the proper way to do it is by an action for setting aside the decree or judgment. That I think it must be admitted is recognised as the ordinary and proper description of such a suit in England. In this country their Lordships of the Privy Council have spoken of a suit to get rid of a previous decree obtained against the Plaintiff by fraud as a suit to set aside the previous decree in Radha Raman Shaha V/s. Pran Nath Roy (1901) I.L.R. 28 Cal. 475 (P.C.) and Khagendra Nath Mahata V/s. Pran Nath Roy (1902) L.R. 29 I.A. 99 : I.L.R. 29 Cal. 395 (P.C.) and we find the expression "setting, aside a decree" obtained by fraud as early as the judgment of Sir Barnes Peacock in 1866 in Nilmoney V/s. Puddo Lochun (1866) 5 W.R. 20. It may be noticed that, even when a suit is brought to set aside a previous decree and is so described by the Plaintiff, if he succeeds, the relief which he obtains is not necessarily a decree in so many words setting aside the previous decree. As Srinivasa Aiyangar, J., pointed out in Arunachellam V/s. Sabapathy (1917) I.L.R. 41 Mad. 213 : M.L.J. 499 various reliefs may ,be given in such a suit appropriate to the circumstances of the case. In Manohar Lal V/s. Jadunath Singh (1906) L.R. 33 I.A. 128 : I.L.R. 28 All. 585 : 16 M.L.J. 219 (P.C.) their Lordships of the Privy Council decided that in such a suit, when the result was that the previous decree was found not good against one of the parties to it but it was not necessary or proper to disturb it as against the other parties to it, the proper decree to make was that the previous decree was not binding on the particular Plaintiff concerned, not that the previous decree should be set aside altogether. But, whether the prayer is that the previous decree should be set aside or that it, should be declared not binding on the Plaintiff in the second suit, and whether the result of the second suit is that the whole decree is set aside or it is more appropriate in the particular circumstances to make a declaration merely that the previous-decree is not binding upon the Plaintiff in the second suit, the nature of the suit is really the same. The suit is to get rid of the effect of the first decree, so far as the Plaintiff in the second suit is concerned, and you cannot alter the nature of the suit or its eventual effect by wording the plaint as one for a declaration that the previous decree is not binding on the Plaintiff in the second suit or by praying that the previous decree be set aside.

(3.) Now, before the amendment of the Court Fees Act so far as this Presidency is concerned by the introduction of the new Sub-section 7(iv-A), it cannot be denied that, even if such a suit as we are discussing had been described by the Plaintiff as one for setting aside a previous decree, for court-fee purposes it would have had to be treated as a suit for a declaratory decree. There was nowhere else in the Court Fees Act for such a suit to come in. If consequential relief was prayed for, then it came under Section 7(iv)(c); if consequential relief was not prayed for, then it came under Art. 17 of Schedule II. There was no separate provision in the Court Fees Act for a suit to set aside or cancel a previous decree. But now the Legislature has introduced the new Sub-section 7(iv-A). That covers certain suits for cancellation of decrees and, as I think we must interpret it, certain suits for setting aside decrees, however described. It covers suits for cancellation of decrees for money or other property having a money value. Thus suits for cancellation of, or setting aside, such previous decrees, which before would have had to come in as suits for declaratory decrees, now have their special place in the Act. The result is that for suits for cancellation of, or setting aside, decrees which have been made for the recovery of money or for the recovery of property having money value you have to pay court-fee under the new Sub-section If they come within that description, they are cut out of the general class in which they previously came - suits for declaratory decrees - and have their special place. We are only concerned in this case with the question of court-fee. Whether verbally it is more strictly appropriate to call such suits suits for declarations that the previous decrees are not binding on the Plaintiffs is purely academic so far as court-fees are concerned. The intention of the Legislature appears to be that a suit in which the Plaintiff prays for a decree that a previous decree obtained against him is of no effect against him on account of fraud in obtaining it and that, so far as he is concerned, that decree is wiped out, however he may choose to word his prayer, comes within the new Section 7(iv-A), if the previous decree was one for recovery of money or property having a money value. That appears to me to cover the present case.