Radhakrishnan, J.

This matter has been placed before me in view of the difference of opinion expressed by two learned judges of this court in P.V.K. Menon v. Excelads (P) Ltd (2004 (2) KLT 1130) on the question of court fee payable in the appeal preferred by the defendants as per Explanation 4 of Section 52 of the Court Fees Act.

2. Learned judge S. Sankarasubban took the view that additional defendants 3 to 9 need pay court fee for the reliefs they prayed for in the appeal though they had not raised any counter claim in the suit. Learned Judge A.K. Basheer on the other hand took the view that additional defendants 3 to 9 have to pay court fee on the subject matter of the suit, Rs.75 lakhs, since they have not raised any counter claim in the suit on payment of court fee.

3. O.S.No.479 of 1999 was a suit filed by respondents 1 and 2 herein as against defendants 1 and 2 who are respondents 3 and 4 herein for specific performance of four agreements for sale with all easements and other similar rights appurtenant thereto and also with the proportionate share. In the plaint it is stated that agreements for sale were executed by defendants 1 and 2 on 28.09.1996 for a total consideration of Rs.75 lakhs. Pursuant to the execution of the agreement plaintiffs were put in possession of the properties. Plaintiffs had availed of cash credit facilities along with defendants 1 and 2 from the Tynampet (Chennai) branch of the Central Bank of India. For that purpose an equitable mortgage was created in respect of the plaint schedule property. Original title deeds of the property and the sale agreements were deposited with the Bank by the plaintiffs and defendants 1 and 2. Later through several requests were made by the plaintiffs to execute the assignment deeds, defendants 1 and 2 had failed to do so and hence plaintiff instituted the suit for a direction to defendants 1 and 2 to effect sale of plaint A, B, C and D properties in favour of the first plaintiff by duly registered deed of conveyance. Alternatively it was also prayed that the defendants may be directed to return to the first plaintiff a sum of Rs.75 lakhs with interest thereon at the rate of 12% per annum, from defendants 1 and 2 charged on the schedule properties.

4. Additional defendants 3 to 9, appellants before us, got themselves impleaded in the suit. Defendants 1 and 2 remained ex parte. Defendants 3 to 9 filed written statement stating that the alleged sale agreements between the plaintiffs and defendants 1 and 2 are fictitious and sham transactions without consideration and were created by the plaintiffs and defendants 1 and 2 to defraud and defeat the interest and claims of the defendants 3 to 9. Defendants 3 to 9 therefore prayed for dismissal of the suit. No counter claim was made by defendants 3 to 9 against the reliefs prayed for in the suit. Plaintiffs have also not raised any relief against defendants 3 to 9. They had sought for relief only against defendants 1 and 2.

5. The trial court decreed the suit on 13.6.2003. Operative portion of the decreed read as follows:-

“In the result the suit is decree directing defendants 1 and 2 to execute and register sale deed transferring the plaint A, B, C and D schedule properties in favour of the first plaintiff company or its nominee or nominees within three months from this date failing which first plaintiff company is at liberty to get the sale deed executed and registered in its name or its nominee’s name or name of its nominees through the court at the cost of defendants 1 and 2 with costs.”

Defendants 1 and 2 did not file appeal. Decree passed by the trial court would be binding on the plaintiffs and defendants 1 and 2. No relief was sought for against defendants 3 to 9 in the suit. Defendants 3 to 9 had also not raised any counter claim against the plaintiffs. Judgment has become final so far as the plaintiffs and defendants 1 and 2 are concerned.

6. Defendants 3 to 9 have come up with the present appeal seeking to se