AKHOURI BIKRAMAJIT PERSAD Vs. GIRWAR PRASAD NARAIN SINGH

JUDGEMENT

(1.) A money decree having been obtained against the petitioners father and he having died the petitioners were substituted in his place in the execution proceedings, and the property now in dispute was put up for sale and sold. Possession was delivered to the auction-purchaser. The petitioners then instituted a suit out of which this application has arisen, alleging that the debt in respect of which the decree was passed was contracted for immoral purposes, and, therefore, not binding on them. They also alleged that notices of the execution proceedings were fraudulently suppressed, and, that therefore, they were not bound by the execution sale. The only relief they asked for was possession of the property which had been sold to the auction purchaser, and the question that has arisen is what court-fees are payable on the plaint. The plaintiffs have paid court- fee under Section 7(v), Court-fees Act. The Court below has called upon them to pay court-fees under Section 7(iv)(c) of the Act.

(2.) THE petitioners have relied on the Full Bench decision in Ramkhelawan Sahu v. Bir Surendra Sahi A.I.R.1938 Pat. 22 , in which it was held that Section 7(iv)(c) applies only to declarations properly so called, such, for instance, as declarations of public status, or a declaration that the plaintiff holds a public office, or a declaration as to the meaning of a will or a trust deed or other public document. It has no reference to the kind of declaration in the sense of a finding of fact as to the plaintiff's title necessary for granting a decree for possession. It has been contended that the present suit is not one for a declaration of the kind referred to in Section 7(iv)(c). With regard to the observations cited from the decision of the Full Bench it must be remembered that that case was not one in which there was any bar to the plaintiff obtaining a decree for possession in the form of a court sale or a decree. THE decision is an authority for the point that was decided and not for other matters. THEre is certainly no indication in the judgment that it was intended to overrule the decision in Lagan Bart Kuer V/s. Khakhan Singh A.I.R.1917 Pat. 108, which has been understood to be the law in this Court since 1917. It was there held that where, in order to succeed in a suit for possession, it is necessary for the plaintiff to obtain a declaration that a document or decree is void or inoperative, the court-fee to be paid must be calculated on the actual value of the property. THE reason appears to be that in a suit in which the plaintiff claims possession, there is, by necessary implication, a prayer for cancelling a document or decree, or for a declaration that a decree or document is not binding on the plaintiff and the suit is governed by Section 7(iv)(c). As was pointed out by a Division Bench in Ramautar Sao V/s. Ram Gobind Sao A.I.R. 1942 Pat. 60, the Court must distinguish be. tween voidable documents and wholly void documents, and between declarations in the true sense and declarations so called, which are merely findings of fact necessary to give the plaintiffs relief. A decree by a competent Court is not void but merely voidable at the instance of parties who have a right to challenge it. Similarly, an execution sale is merely voidable and not void. If, therefore, a plaintiff is not entitled to possession of property which has been sold in execution of a decree without setting aside the sale or obtaining a declaration that it is not binding on him, and he prays merely for possession, there is by necessary implication a prayer for a declaration that the sale is not operative against him. In this view of the matter, the decision of the Court below is correct, and this rule must be discharged with costs; hearing fee, three gold mohurs.