Shyam Sunder Singh vs Kaluram Agarwala and Others

Meredith, J.—This is a reference to me as Taxing Judge u/s 5, Court-fees Act, the question being what is the proper court-fee on the memorandum of appeal. In the lower Court court-fee was paid u/s 7(v)(a) of the Act, and that was accepted as correct. The suit having been dismissed, the plaintiff has appealed to this Court, and the Stamp Reporter has expressed the view that the plaintiff should have paid court-fees u/s 7(iv)(c) or alternatively u/s 7(v)(d). The Taxing Officer is inclined to accept the stamp report, but has referred the matter to me for an authoritative decision.

The plaintiff is the zemindar of the Pandra estate comprising various villages under various tauzis of the Manbhum Collectorate and also in Burdwan in Bengal. The plaint recites that the Pandra estate, of which the villages in suit form a part, is a Government ghatwali estate and accordingly inalienable and not liable to be sold in execution of a money decree against the zamindar. It goes on to state that the deceased, father of defendant 1, obtained a money decree in 1931 against the plaintiff. Execution started the same year, and after various proceedings, on 27th September 1932, touzim. 23 of the Manbhum Colleotorate was sold and purchased by the other defendants. In all the processes relating to the execution of the decree the property sold was always described as touzi No. 23, and the decree-holder never specified anywhere what villages comprised this touzi and were sought to be sold. The sale was confirmed on 18th November 1935, and on 27th August 1938, defendants 1st party applied for delivery of possession of touzi No. 23. In their application they enumerated and specified the villages, and in doing so included several villages over which title never passed to them under the certificate of sale, though it was clear that nothing that carae under any other touzi had been sold. The Court wrongly granted them possession of the villages falling under touzis 21, 22 and 24 and also of other two villages, Achhra and Dhangari, which had not been purchased. The plaintiff''s appeal in the High Court against the order for delivery of possession was dismissed on the ground that, the plaintiff being a judgment-debtor, his objection could not be entertained. Therefore, the plaintiff was obliged to bring the present suit. The plaintiff valued the properties at Rs. 3,00,000 for the purposes of jurisdiction and Rs. 1073-5-4, being 20 times the Government revenue for payment of court-fee u/s 7(v)(a), Court-fees Act. The properties were in the hands of defendants third party as receivers, and they were accordingly made pro forma defendants.

Accordingly the plaintiff prayed for the following reliefs: (a) that it be declared that the plaintiff''s right, title and interest in the villages enumerated in the schedules had not passed to the defendants 1st and 2nd parties under the certificate of sale, (b) that possession be restored to the plaintiff of those villages over which the defendants 1st party had already taken possession, and (c) that it be declared that the right, title and interest of the plaintiff in the villages under tauzi No. 23 or any other tauzi had not passed to the defendants, and they be permanently retrained from taking delivery of possession or otherwise interfering with the plaintiff''s possession over the villages enumerated in Schedule B. There was the usual prayer for costs and any other relief thought proper. An amendment was made later to prayer (b) that the plaintiff be also put into possession over those villages over which defendants 1st party had come into possession during the pendency of the suit from the receivers.

The prayer for injunction obviously makes court-fee payable u/s 7(iv)(d) in respect of those villages in regard to which injunction was sought, but in view of the amendment, which I have referred to, in Schedule B, it has been argued that the prayer for injunction became unnecessary and had accordingly been abandoned, and it was only by a clerical error that, when the amendment was made, the prayar for injunction was not deleted. Accordingly I shall deal with the matter on the basis that no injunction was sought for.

In order to make the position clear, it should be stated that the execution sale took place in the presence of the plaintiff as judgment-debtor. After the sale, the plaintiff as judgment-debtor made an application under Order 21, Rule 90, Civil P.C., to get the sale set aside, and that application succeeded in the executing Court, but the High Court reversed that decision, and the sale was upheld up to the Privy Council. In view of this it may well be asked how the suit was maintainable at all having regard to the principles'' of constructive res. judicata and the provisions of Section 47, Civil P.C. That question, however, does not concern me, and it would be out of place to express any opinion. The argument addressed to me is that the estate being a Government Ghatwali and inalienable, the sale was a complete nullity and did not need to be set aside. No declaration was therefore necessary. All that was needed was a finding by the Court on the point, and the suit was merely one for recovery of possession, and as such governed by Section 7(v), Court-fees Act. It is conceded that if the sale was merely voidable, it would have to be set aside, and a declaration would be necessary and, as a declaration was asked for, the suit would be governed by Section 7(iv)(c) as one for declaration of title and recovery of possession, that is to say, a suit to obtain a declaratory decree where consequential relief is prayed. Reliance is placed in particular on two Full Bench decisions of this Court, Ramsumran Prasad and Others Vs. Gobind Das, and Ramkhelawan Sahu Vs. Bir Surendra Sahi and Others, ; a decision to which I was a party, Ramautar Sao Vs. Ram Gobind Sao and Others, and a Pull Bench decision in which that was approved, namely Mt. Rupia Vs. Bhatu Mahton and Others, .

In my opinion the contention is incorrect, and the rulings cited are inapplicable for two different reasons. In the first place I consider this was essentially a suit for declaration of title and recovery of possession of the ordinary type under which it has always been held that court-fees are payable u/s 7(iv)(c). The suit did not proceed upon the admitted basis that the estate was a Government Ghatwali. That was in fact the main point in issue, and the suit has been dismissed on the finding that it was not a Government Ghatwali. Therefore a declaration of the status and legal character of the estate was essential before the plaintiff could obtain relief. It was not a question of a mere finding. Indeed the suit was essentially one for a declaration of the nature of the plaintiff''s title to the property which was sold, a declaration which if given, would protect the estate from any sale in execution of the money decree or of any other money decree. If we apply the test laid down by the Pull Bench in Ramkhelawan Sahu Vs. Bir Surendra Sahi and Others, and ask--suppose the plaintiff had got a decree for possession without a declaration could he have complained that he had not obtained the full relief asked for? In my opinion he could have done so, and the declaration was, therefore, an essential part of the relief,

My second reason is this. A sale by the Court of property which the Court has no jurisdiction to sell may be nullity in the sense that it can be ignored by any third party, but it is not a nullity as between the parties to the proceedings. Where a sale is made by the Court in the very presence of the judgment-debtor, he being a party to the execution proceedings, and after consideration of all objections made by him and rejection thereof, the judgment-debtor cannot assert that it is a complete nullity so far as he is concerned. He cannot, in my judgment, get any relief as against the sale unless he can get that sale set aside. The position is similar to that in the case of a decree passed by a Court without jurisdiction. As regards third parties, it may be a nullity fit to be ignored, but as between the parties to the suit it can only be avoided, even on the score of want of jurisdiction, by getting it set aside. This applies where the Court lacks territorial or pecuniary jurisdiction in respect of the property as is clear from the provisions of Section 21, Civil P.C. and Section 11, Suits Valuation Act. The position in regard to decrees has been very clearly explained in the Full Bench decision in Ramdeo Singh and Others Vs. Raj Narain Singh and Another, , to which I was a party. I can see no reason why the same principle should not be applicable in execution proceedings. No party to a legal decision of a properly constituted Court can be heard to say that it is a complete nullity which he can ignore, though he may, in suitable cases, get it set aside for want of jurisdiction or other proper Cause.

It is needless to add that, apart from these considerations, the plaintiff, in so far as he asked for a declaration that possession had been delivered over properties which had not been sold, was asking for the delivery to be set aside in respect of those villages.

The suit was, in my opinion, quite clearly a suit for declaration of title and consequential irelief and governed by Section 7(iv)(c). This being my decision, it is unnecessary to consider the other point whether, if governed by Section 7(v), it would fall u/s 7(v)(a) or 7(v)(d). I may say, however, that the learned Government Advocate has not satisfied me that the property in suit was not a definite share of a revenue-paying estate or not separately assessed to revenue so that Section 7(v)(d) would be applicable rather than Section 7(v)(a).

My answer to the reference is that court-fees on the memorandum of appeal must be realised in accordance with the provisions of Section 7(iv)(c), Court-fees Act.