Ahmed Mirza Saheb and Another vs A. Thomas Executor to the estate of the late Mr. J.P. Wise and Others

Ghose and Grant, JJ.—The only question we have to decide in this appeal is whether the lower Courts were right in holding that the plaint was insufficiently stamped, because the stamp duty payable was not Rs. 10 under Clause 3, Article 17, Schedule II of the Court Fees Act, but the ad valorem fee as prescribed by Schedule II of the said Act.

It appears that, in execution of a certain decree obtained by one Thomas against Mahomed Mirza, the property in suit was attached as belonging to the judgment-debtor. The plaintiff preferred a claim, but his claim was disallowed, and the property in question was ordered to be sold. Thereupon, the plaintiff brought the present suit to have it declared that the property belonged to him and not to Mahomed Mirza.

It seems to us that this was a suit where consequential relief was asked for. It was a suit which was brought for the purpose of establishing the plaintiffs'' right to the property in question, and with a view to free the property from the attachment which had been put upon it, and to protect it from being sold as the property of Mahomed Mirza. In this view of the matter, we are of opinion that the suit would not fall within Article 17 of the Schedule II of the Court Fees Act, and that the ad valorem duty as prescribed by Schedule I was payable upon the plaint.

Our attention has been called to certain decisions of the Bombay and Allahabad High Courts. No doubt these decisions are in favour of the view taken by the appellant", but they are opposed to a ruling of this Court--Jalaluddin Mahomed v. Shohorullah 15. B.L.R. Ap. 1 : 22 W.R. 422 and from enquiry we have made upon the subject, it appears that this ruling has been for several years followed in this Court in taxing and levying Court-fees payable upon petitions of appeal. We agree in the principle laid down in the said ruling, and accordingly dismiss this appeal with costs.