Abdul Kudus and Others vs Abdul Gani and Others

Wadsworth, J.—This petition raises a question of the court-fee payable on an appeal preferred by the plaintiff against an order requiring him

to pay a sum of Rs. 3,000 and odd being his share of debts binding the property, the possession of which has been decreed to him subject to this

payment. The question is whether the plaintiff should value his appeal on the same basis as he valued his suit, namely, as if possession were the

subject-matter, or whether he should value it on the basis of the value of the order which he seeks to get rid of in the appeal. Obviously, a

contention such as that which has been raised before me would never be raised were it not for the fact that the suit itself has been filed on a

fictitious value much less than its real value. Consequently, it is to the advantage of the petitioner to get the appeal relating to only a portion of the

subject-matter of the suit valued at the value of the whole of the subject-matter of the suit. The absurdity of this position should not, in my opinion,

govern the decision of the question at issue.

What is it which the appellant seeks to get rid of by means of his appeal? Quite clearly, it is not a decree refusing him possession, but a decree

which, while recognising his right to possession, requires him to pay Rs. 3,000 and odd as a condition precedent to getting possession. Logically,

therefore, the appeal should be valued at the value of the payment the necessity for which he desires to remove. Once this necessity is removed,

the decree for possession which has already been granted to ham remains.

Numerous cases have been quoted before me. Those upon which the petitioner relies are all of, them cases in which the defendant has been

granted a certain sum as compensation and appeals against the decree generally, asking for a larger sum of compensation or alternatively for the

dismissal of the suit.

In such cases, quite clearly since the defendant asks for the dismissal of the suit the subject-matter of the appeal must be the subject-matter of

the suit, the amount payable as compensation being merely incidental thereto. Such cases are: In Re: Garapati Butchi Seethayamma, and

Pathumma Umma and Others Vs. Aliyammakkanakath Mohideen (dead) and Others, . The first case quoted contains an obiter dictum to the

effect that even though the only question raised in the appeal is the value of improvements the subject-matter of the appeal would be the possession

of the property. The decision has been frequently quoted and in several instances, it has been pointed out that his observation is obiter and need

not be followed. On the other hand, I have been referred to three cases in which the plaintiff is the appellant and seeks to get rid of that portion of

the decree which requires him to pay a sum of money as a condition precedent to the enforcement of his decree for possession which amount has

been held to determine the value of the appeal. The case, in In Re: Porkodi Achi, is the decision of a single Judge on facts almost identical with

those before me. The decision of the Bench in Kozhikote Patinhare Kovilakath Mahadevi alias Kunhi Thamburatti alias Valiya Thamburatti

Avergal styled Viyathen Notti Vs. Kozhikote Patinhare Kovilakath Kulapura Thavazhi Karnavan and Manager Veerarayan alias Marumakan

Thamburan and Others, relates to a Malabar Compensation case, but the point is essentially the same, the plaintiff being the appellant. The learned

Judges who decided this case criticise the obiter dictum in the case in. Reference under Court-Fees Act, Section 5. I.L.R.(1899)Mad. 84 They

also follow another bench decision in a case arising out of the redemption of a kanom where the plaintiff appealed against the order requiring him to

pay compensation for improvements - vide In Re: (Tiruvangalath Nellyoton) Paidal Nayar and Others, . This latter decision also criticises the obiter

dictum referred to and approves the decision of Kumaraswami Sastri, J., in In Re: Porkodi Achi, that the value of the appeal is the value of the

payment to which the appellant objects.

Thus it will be seen that there is ample authority for adopting that which appears to me to be the logical view, namely, that the appellant-plaintiff

who seeks only to get rid of an order for payment of a sum of money should value his appeal at the amount of that sum of money. This is the view

taken by the Court below. The revision petition therefore is dismissed with costs of the Government Pleader. Time allowed till the reopening day of

the lower Court after the summer recess for payment of the deficit court-fee.