Judgment

ALAGIRISWAMI, J. :- This appeal raises the question of the court fee payable in the suit filed by the lst respondent and his minor brother the 2nd respondent against their father the 3rd respondent and the alienee from him the appellant.

2. On 13-7-1962 the father executed a mortgage deed in favour of the appellant of a property of which he claimed to be the sole owner for a sum of Rs. 16,000/-. The mortgagee, the appellant filed a suit on the foot of this mortgage and obtained a decree. When he tried to take out execution proceedings for the sale of the mortgaged property, respondents 1 and 2 filed a suit for a declaration that the mortgage executed by their father in favour of the appellant is null and void and ineffectual as against them as the property was a joint Hindu family property, and the mortgage had been effected without consideration and family necessity. On this plaint the plaintiffs paid a fixed court fee of Rs. 19.50 and the value of the suit for purposes of jurisdiction was given as Rs. 16,000. A preliminary objection having been raised by the appellant that the suit was not properly valued for purposes of court fees and jurisdiction, the Subordinate Judge tried it as a preliminary issue. He held that although the case is covered by Section 7 (iv) (c) of the Court Fees Act, the proviso to that section applied and directed the plaintiffs to pay court fee on the value of Rs. l6,000 which was the amount at which the plaintiffs values the suit for the purposes of jurisdiction. The court fee not having been paid the plaint was rejected. The plaintiffs thereupon carried the matter upon appeal before the High Court of Punjab & Haryana. Before that Court the plaintiffs did not seriously contest the position that the consequential relief of setting aside the decree within the meaning of S. 7 (iv) (c) of the Court Fees Act was inherent in the declaration which was claimed with regard to the decree. But taking the view that the plaintiffs were not at all bound by the mortgage in dispute or the decree, the High Court held that there was no consequential relief involved since neither the decree nor the alienation binds the plaintiffs in any manner. The 1st defendant in the suit has, therefore, filed this appeal.

3. Before us a preliminary objection was raised based on the observations of this Court in Rathnavarmaraja v. Smt. Vimla, AIR 1961 SC 1299 that the present appeal is not competent. In that case this Court observed that whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State and that the defendants who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. But the observations must be understood in the background of the facts of that case. This Court was there dealing with an application for revision filed before the High Court under Section 115 of the Code of Civil Procedure and pointed out that the jurisdiction in revision exercised by the High Court is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction, and the provisions of Sections 12 and 19 of the Madras Court Fees Act do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the court fee payable. The ratio of that decision was that no revision on a question of court fee lay where no question of jurisdiction was involved. This decision was correctly interpreted by the Kerala High Court in Vasu v. Chakki Mani, AIR 1962 Ker 84 where it was pointed out tha