S. Sankarasubban, J.

This R.F. A. is filed against the judgment and decree in O.S. No.479 of 1999 of the Sub Court, Ernakulam. The suit was filed by respondents 1 and 2 for specific performance of an agreement. Appeal is filed by respondents 3 to 9 who got themselves impleaded in the suit. According to the plaintiffs, defendants 1 and 2 executed an agreement in their favour for the sale of the plaint schedule property. The amount under the sale is fixed as Rs.75 lakhs. So, the suit was filed paying the court fee on Rs.75 lakhs.

Respondents 3 onwards got themselves impleaded as additional defendants. It was contended by them that they have attached the above property before judgment in suits filed against defendants 1 and 2. According to them, decrees have been obtained against defendants 1 and 2 and hence, they prayed for dismissal of the suit. The Court below by the impugned judgment rejected the case of the appellants and granted a decree as prayed for by the plaintiffs. It is against the above judgment and decree that the appeal has been filed.

2. In paragraph 11 of the appeal memorandum, it is stated as follows: 'The valuation of the 4 items of plaint schedule properties, as given in the plaint is Rs.75 lakhs which is excessive. Court fee has been paid in the suit for the said amount of Rs.75 lakhs. The amounts due to the appellants from respondents 3 and 4 would come to more than Rs.20 lakhs, as per the decrees in the suits O.S.663/96,533/98,40/97,555/98,102/97,101/97 and 10/99 mentioned above. The appellants are to realise the said amount from the plaint schedule properties, which belong to respondents 3 and 4. However the claim is limited to Rs.20 lakhs, for the purpose of the above appeal and payment of court fee and accordingly court fee is being paid for the said amount. Under such circumstances, the claim is limited to Rs.20 lakhs, charged on the plaint schedule properties. Thus the subject matter of the appeal is confined to plaint schedule property to the extend of Rs.20 lakhs, which amount the appellants are to get from respondents 3 and 4 and to be realised from the plaint schedule property belonging to them".

Accordingly, the appellants have paid court fee on Rs.20 lakhs. When the matter came up for admission, learned counsel for respondents 1 and 2 contended that court fee paid is not correct. Court fee ought to have been paid on Rs.75 lakhs.

3. We heard learned counsel for the appellants Shri. M.C.Cherian, learned counsel for respondents 1 and 2 Shri. M. A.Firoz and Advocate Shri. V.Giri as Amicus Curiae.

4. After hearing the parties, I am of the view that proper court fee has been paid in the appeal. It is true that in the Court below the appellants took the contention that the suit should be dismissed and no decree should be given for specific performance. In the appeal, now they say that they should be given a decree for Rs.20 lakhs charged on the plaint schedule property. Whether a decree can be granted or not will depend upon the evidence adduced in the case. But it cannot be said that the appellants cannot limit their claim to be lesser than what they wanted in Court below. So far as payment of court fee is concerned, S.52 of the Kerala Court Fees and Suits Valuation Act says that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal. Explanation 4 states that where the relief prayed for in the appeal is different from the relief prayed for or refused in the Court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal. According to me, there is nothing to prevent the appellants from confining their claim to Rs.20 lakhs, even though in the Court below they prayed for dismissal of the entire suit. In the above view of the matter, I am of the view that court fee paid is correct. Ordered accordingly.

A.K. Bash