K.V. Meenakshisundaram vs V. Narayanaswamy Naidu and Others

S. Ramachandra Ayyar, C.J.—This Revision Petition raises a question as to the applicability of the Court-fees Act, 1955. The suit in respect of which this question arises, was filed under Order XXI, Rule 58, CPC under the following circumstances. In Original Suit No. 257 of 1953, the Plaintiff in the present suit obtained a decree against the third Defendant for a sum of Rs. 4,488 together with interest and costs. In execution of that decree he attached certain property as belonging to the third Defendant; while that attachment was pending, Defendants 1 and 2 to the suit filed Execution Application No. 978 of 1961, on 9th July 1961, claiming that they were the owners of the property and that it could not be validly attached in execution of a decree against the third Defendant. Their claim was allowed on 29th September 1961. Thereafter, the Plaintiff has filed the present suit for setting aside that claim order. A sum of Rs. 15 was paid as court-fee on the plaint under Article 17(1) of Schedule II of the Madras Court-fees (Amendment) Act (V of 1922). The learned Subordinate Judge returned the plaint as insufficiently stamped, as according to him, the Court-fee payable would be u/s 41(2) of the Madras Court-fees and Suits Valuation Act XIV of 1955. The correctness of this view has been challenged by Mr. V.S. Rangaswami Ayyangar, appearing for the Petitioner.

Learned Counsel has in this connection invited my attention to Section 87(2) of the Act, which says:

All suits and proceedings instituted before the commencement of this Act and all proceedings by way of appeal, revision or otherwise arising therefrom, whether instituted before or after such commencement shall, notwithstanding the repeal of the Court Fees Act, 1870...be governed by the provisions of the said Act and the rules made thereunder.

It is argued that as the present suit is but a continuation of the claim proceedings which, in turn, were the consequence of the decree passed on 19th January 1954, the Court-fees Act that would be applicable to this suit will be only the old Act. It is no doubt true that a suit filed under Order XXI, Rule 58 , CPC is regarded for certain purposes as a continuation of the claim proceedings which had given rise to that suit. But the argument of learned Counsel goes further than this he says that the nexus between the claim suit and the previous proceedings goes even beyond those proceedings and it should really be connected with the suit of the year 1953 in which claim proceedings were filed. It is argued that:

all proceedings by way of appeal, revision or otherwise.

occurring in Sub-clause 2 of Section 87 will take in a subsequent claim suit following the execution proceedings in the first suit. This contention proceeds upon a misunderstanding of the scope of a claim suit. The subject-matter of a suit under Order XXI, Rule 58 or 103, CPC is the summary order that preceded it and not with what formed the subject-matter of the earlier suit. It can, therefore, be said that it is connected with that summary order. There is, therefore, no warrant for holding that such a suit is connected with the earlier suit itself. For example, the earlier suit might be merely one for money. But a claim suit is very often concerned with immovable property. There can, therefore, be no connection between the two, though the latter will be the outcome of the execution proceedings in the former. In Tiruvengadaswami v. State of Madras ILR (1959) Mad. 460, Panchapakesa Ayyar J., held that a claim suit under Order XXI, Rule 58, CPC instituted after the commencement of the new Court-fees Act of 1955, in respect of claim petitions filed before the coming into force of the new Act, would be governed by the provisions of the earlier enactment. That is, because the claim suit being a continuation of the earlier claim proceedings. No authority has, however, been brought to my attention, where it has been held that the claim suit under Order XXI, Rule 58, CPC can be said to arise out of the original suit itself. Reference was made to Chakravarthi v. Collector of Madras ILR (1960) Mad. 954. That was a case where claims were filed under the Land Acquisition Act after the coming into force of the new Court-fees Act, 1955. But the notification under the Land'' Acquisition Act, in respect of which the claims were made, was issued prior to the coming into force of that Act. It was held that the proceedings u/s 18 of the Land Acquisition Act being a continuation therefrom, the earlier Act would apply. I cannot see how this decision would help the Petitioner. There was a direct connection between the notification and the claim in that case. I am, therefore, of opinion that the view taken by the learned Subordinate Judge is correct. This Civil Revision Petition fails and is dismissed. There will be no order as to costs.

The Petitioner will have one month''s time after the reopening of the lower Court after summer recess to pay the requisite Court-fee.