The dismissal of a suit under S. 8B(3) of the Court Fees Act, 1955, is not a decree and is therefore not appealable.

G. N. Das, J :- This is an application on behalf of the plaintiffs-petitioners and is directed against an order made by Mr. Fatik Chandra Roy Choudhury, learned Subordinate Judge, Hooghly, holding that the suit was not properly valued and stamped and requiring the plaintiffs to put in the deficit court-fees within one week from that date.

2. The plaintiffs allegation in the plaint is that the disputed properties which are described in items Nos.1 to 4 of the plaint belonged at one time to a joint family consisting of four brothers, Bama Charan, defendant 1 of this suit, Shama Charan, Panchanan and Satish. Shama Charans son Kalipada is defendant 2 in this suit. Panchanans widow Mahalauxmi is plaintiff 1 and his son Dulal is plaintiff 2. Satish is dead. On certain allegations made in the plaint the plaintiffs alleged that a preliminary decree passed in a previous suit for partition being Title suit no. 31 of 1947 was inoperative, fraudulent and not binding on the plaintiffs of this suit.

The plaintiffs alleged that in items NoS.2 to 4 of the plaint in the present suit the plaintiffs have 8 annas share and defendant 2 the other 8 annas share and in item no. 1 the plaintiffs have 6 annas share; defendant 2, 6 annas share and defendant 1 the remaining 4 annas share. The plaintiffs also alleged that defendant 1 had executed the decree for partition in the aforesaid suit No.31 of 1947 and was trying to realise the sums of money which under that decree were to be paid by the present plaintiffs. The plaintiffs further alleged that they were in possession of the disputed properties inspite of the aforesaid decree for partition. The plaintiffs accordingly prayed for a declaration (1) that the decree dated 24-7-1947, in suit no. 31 of 1947 was void, inoperative, fraudulent and not binding on the plaintiffs, and (2) that in item no. 1 of the plaint schedule the plaintiffs have 6 annas share, defendant 2, 6 annas share and defendant 1 the remaining 4 annas share and in the other items the plaintiffs have. 8 annas share and defendant 2 the remaining 8 annas share, defendant 1 having no share in the said properties. The plaintiffs also prayed for a permanent injunction restraining the defendants from executing the decree obtained in the said suit No.31 of 1947. The suit was valued at Rs.13,950 for partition and a court-fee of Rs.15 was paid therefore. The suit was valued at Rs.50 for declaration and a court-fee of Rs.2-13-0 was paid on the said sum of Rs.50.

3. The defendants entered appearance and raised a preliminary issue, namely, whether the suit was properly valued and whether proper court-fees were paid. This issue was decided by the learned Subordinate Judge on 27-8-1951. The learned Judge was of the opinion that the suit should have been valued on an objective basis, that basis being the difference in the value of the plaintiffs share as decreed in the previous suit for partition and the share as claimed in this suit. On this basis the learned Judge was of the opinion that in item No.1 the increased share which the plaintiffs claimed was 1/8th and the increased share claimed by the plaintiffs in items No.2 to 4 was 1/4th. Taking the value of these items from the plaint the learned Judge valued the excess share claimed by the plaintiffs in item No.1 at Rs.500 and the value of the excess share in items No.2 to 4 at Rs.2487-8 annas, that is to say, the learned Judge thought that the objective value should be Rs.2987-8 annas and calculating court-fees ad valorem on this sum the learned Judge was of the opinion that the plaintiffs were required to pay Rs.258-12 annas. The learned Judge directed that the deficit court-fees should be paid within one week.

The case was put up for hearing on 11-9-1951. On the said day the plaintiffs filed an application under S.151, Civil P.C. for re-consideration of the order made by the learned Judge on 27-8-1951. This application was rejected by order No.24. Then the learned Judge recorded the followin