RASH BEHARI NANDI Vs. SMHAFEZA KHATUN CHAUDHURANI

JUDGEMENT

(1.) THE petitioners in this rule brought a Suit No. 52 of 1933 for a declaration that a certain revenue sale is illegal and ultra vires and not binding on the petitioners. THE opposite parties being the defendants raised a defence that the fixed court-fee of Rs. 20 paid on the basis that the suit is purely of a declaratory character was insufficient and that the plaintiffs could not maintain the suit without paying ad valorem court-fees. THEreupon the trial Court took up the question of court-fees as a preliminary issue and by its order dated 20 March 1934 decided that the amount of court-fees paid by the petitioners was sufficient. Against that order an appeal was taken by the opposite parties defendants to the District Judge and the latter by his judgment, dated 7 May 1934 disagreeing with the decision of the trial Court held that the plaintiffs were bound to pay ad valorem court-fees at ten times the revenue payable for the estate in question. This judgment was passed ex parte. THE petitioners having failed to get that judgment set aside moved this Court in revision and obtained this rule.

(2.) IT is contended for the petitioners that the District Judge exercised his jurisdiction wrongly because the order of the trial Court holding that the case as framed did not call for ad valorem courtfees was not appealable. On the face of it, it was not, but it is contended for the respondents-opposite parties in this Court that an appeal will lie from the decision of a Court where the decision necessarily involves a decision of the category or class under which a suit falls, even though it should incidentally decide the question of valuation. IT is pointed out that the trial Court took the view that the defaulting proprietors had not been dispossessed at the time of the suit and therefore they were not bound to ask for delivery of possession and that on the other hand the appellate Court took the view that, as possession had been delivered to the auction purchasers subsequently, the suit was not solely for a declaration. No doubt it has been held that an appeal will lie where a question involves a decision of the class under which a suit falls in spite of the bar under Section 12, Court-fees Act: see for instance the cases in Dada Bhau Kittur V/s. Nagesh Ram Chandra (1899) 23 Bom 486, Sundar Mal Marwari V/s. Jessie Caroline Murray (1912) 16 I C 963, Taraprosanna Changdar V/s. Nrisinha Murari Pal 1924 Cal 731 and Chandramani Koer V/s. Basdeo Narain Singh 1919 Pat 270. In all these cases the matter came up properly before the superior Court either on appeal or in revision. In the present case the matter would have to be appealable under the provisions of the Code before it would be said that the matter could be argued in appeal before the lower appellate Court. As to this contention it is only said for the respondents-opposite parties that the order of the trial Court dated 20 March 1934 must be taken to be a decree. We are not prepared to accept this contention. In that view no appeal lay to the District Judge and so the order of the District Judge, dated 7 May 1934 cannot be sustained. The rule must be made absolute. The order complained against must be set aside. We make no order as to costs.