PANDHARINATH KRISHNA Vs. MAROTI GANESH

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The facts leading to this appeal are shortly these. In civil Suit No. 156 of 1927 the plaintiff obtained against defendant 2 a simple money decree for Rs. 1,851 on 22nd April 1927 and in execution thereof attached certain property belonging to the judgment-debtor. It was alleged that with the intention of defeating the plaintiff's claim under the aforesaid decree defendant 2, acting in collusion with defendant 1 executed a bogus promissory note in his favour on the basis of which the latter, in civil Suit 117 of 1930, fraudulently obtained a decree against the former for Rs. 1,746-4-0 and in execution got the same property attached which was attached by the plaintiff and had applied for rateable distribution under Section 73, Civil P. C. The plaintiff therefore brought the suit out of which this appeal arises, for a declaration that the promissory note executed by defendant 2 in favour of defendant 1 was bogus and fraudulent and that the decree obtained by defendant 1 against defendant 2 in civil No. 117 of 1930 was void against him for the same reason. By way of consequential relief the plaintiff prayed that defendant 1 be permanently restrained by an injunction from executing his decree against any property belonging to defendant 2. The plaintiff paid a court-fee of Rs. 10 for the declaratory relief and having valued his consequential relief for injunction at. Rs. 5 paid a court-fee of Rs. 0-6-0 on it, thus bringing the total valuation for purposes of jurisdiction at Rs. 135.

(2.) DEFENDANT 1 resisted the suit on various grounds one of which was that the suit in its present form was not maintainable. The trial Court upheld this plea and holding that no cause of action was disclosed in the plaint dismissed the suit as premature. On appeal the lower appellate Court remanded the case for trial on merits as it came to the conclusion that the suit was maintainable. Against this remand order the present appeal has been filed by defendant 1. Two questions arise for determination in the present appeal: (1) relating to the court-fees and (2) as to the maintainability of the suit. I am quite clear that the claim has been much under-valued in the present case. On the plaintiff's own allegation in the plaint that defendant 1 had obtained a decree against defendant 2 for Rupees 1,746-4.0 he was bound to value his relief for injunction on this basis and not upon an arbitrary valuation of Rs. 5. The effect of the consequential relief claimed by the plaintiff would be to wipe off completely the liability of defendant 2 and his property for the satisfaction of the decree of Rs. 1,746.4-0 obtained by defendant 1 against defendant 2. The real value of the relief then as stated by the plaintiff himself was Rs. 1,746-4-0 and he should not have been allowed to state a lower value for purposes of court-fee computation and of jurisdiction.

(3.) ON the second question it was undoubtedly held in Venkatarama Aiyar v. South Indian Bank Ltd. AIR 1920 Mad 605 that a decree-holder claiming rateable distribution under Section 73, Civil P. C., is entitled to file a suit for a declaration that another decree-holder is not entitled to receive rateable distribution and for an injunction restraining him from receiving payment even before the distribution of the assets by the Court and that he-need not wait until actual distributions is made to bring his suit for a refund. But the present case is easily distinguishable on facts from the aforesaid ruling on which the lower appellate Court has relied. In the Madras case the assets were realized and held by the Court and it was found that they were-insufficient to discharge the liabilities under both the decrees. In the present case it is admitted that the attached property is not yet sold and it cannot therefore be said with any degree of certainty if upon the sale thereof assets sufficient to satisfy both the decrees might not be obtained. In the plaint there is no allegation that the assets when realized would be insufficient to satisfy both the decrees in full and the-plaintiff was not prepared, even at this-stage, to file an affidavit putting forwards such an allegation.