The main legal point established in the judgment is the interpretation and application of S.25 and S.40 of the Kerala Court Fees and Suits Valuation Act in relation to the valuation and court fee payable for a suit seeking declaration that a decree is null and void.

S. Sankarasubban, J.

This Civil Revision Petition has been referred before the Full Bench since the correctness of the Division

Bench decision in Vasudeva Rao v. Hari Menon,1981 KLT 763, was doubted before the Division Bench,

2. The plaintiff in O.S.711/1993 on the file of the Sub Court, Ernakulam is the revision petitioner. The plaintiff is alleged to be a lunatic and is represented by his guardian, his wife. The allegation in the plaint are that the decree in O.S.183 of 1984 of the Sub Court, Ernakulam was obtained against the plaintiff (who was the defendant therein) when he was a lunatic and the proceedings in that suit continued against the plaintiff without appointing a guardian. Hence, according to the plaintiff, the decree is a nullity. 'The reliefs prayed for in the plaint are: (i) a declaration that the decree in O.S.183 of 1984 is null and void; and (ii) consequential injunction restraining defendants 2 to 5 from executing that decree. The plaintiff valued the declaratory prayer at Rs. 30,000/- as per S.25(d)(ii) of the Kerala Court Fees and Suits Valuation Act, hereinafter referred to as "the Act" and a court fee of Rs. 1050/- was payable on it. The defendants entered appearance and filed a written statement. They contended that the suit was not properly valued and, therefore, the court fee paid was not correct. Hence an issue was raised as follows:

"Whether the valuation of the suit and court fee paid are correct?".

The contention raised by the defendants was that the prayer of the plaintiff actually amounts to setting aside a decree and hence the suit ought to have been valued and Court Fee paid under S.40 of the Act. Under S.40 of the Act, in a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit and such value shall be deemed to be if the whole decree or other document is sought to be cancelled the amount or value of the property for which the decree was passed or other document was executed. The trial court after considering the arguments of both parties held that the relief prayed for by the plaintiff-petitioner amounts to cancellation of decree, under S.40 of the Act and hence directed to pay court fee on the value of the property at Rupees five lakhs. The plaintiff had only paid Court Fee on Rs. 30,000/-. Hence he was directed to pay the balance Court Fee payable on Rs. 4,70,000/-. It is against that order this revision petition was filed.

3. When the revision petition came up for hearing before the learned Single Judge, the counsel for the petitioner contended that the decision in Vasudeva Rao v. Hari Menon,1981 KLT 763, was not correctly decided. Hence, the matter was referred to the Division Bench. The Division Bench was of the view that since the correctness of the decision of the Division Bench was raised, this matter is decided by a Full Bench. It is in these circumstances, the matter has come before the Full Bench.

4. After we heard the counsel for the petitioner, counsel for the respondents and the learned Government Pleader, we are of the view that the correctness or otherwise of the decision in Vasudeva Rao v, Hari Menon,1981 KLT 763 does not actually arise for consideration in this case. The said decision was with regard to the scope and meaning of S.40 of the Act. S.40 is with regard to valuation and Court Fee of suits with regard to cancellation of decree. That decision held that in suits to set aside decrees with respect to immovable properties, Court Fee has to be paid on the money value of the property. But in this case, we are taking the view that the suit is to be valued and Court Fee paid under S.25 of the Act, Hence it is not necessary to go into the question whether the decision in Vasudeva