The market value of the property on the date of filing the new suit should be used for court fee valuation in a suit for cancellation of a decree.

Koshy, J.

Plaintiffs are the revision petitioners. The suit was mainly filed for a declaration that the decree in O.S. No. 402/1979 as modified by this court in A.S. No. 36/1983 in vitiated by fraud, misrepresentation and collusion and they are not binding on the plaintiffs. The plaintiffs had valued their property at Rs. 1,15,333/-. It is the valuation shown in the suit in 1979 and court fee payable on that valuation under Section 40 of the Kerala Court Fees and Suits Valuation Act, 1959. Court Fee payable is Rs. 6,950 and therefore 1/3 court fee was initially paid. Defendants contended that court fees payable at the present market value of the property and not on the market value of the property as shown in the impugned decree. An advocate Commissioner was deputed by the court below to assess the market value of the property. He valued the property at Rs. 650/- percent. Plaintiffs produced Exts. Al to A3 showing that the market value of the adjacent property is below Rs. 650/-. Plaintiff was also examined before the court. No counter evidence was adduced. After considering the matter, the court below fixed the market value at Rs. 10 lakhs. According to the respondents, petitioners were parties in the appeal suit and the present suit itself is frivolous and there is no bonafide in the contentions of the petitioners. After taking the evidence of the parties, the trial court came to the opinion that value of the property should be fixed at Rs. 10,00,000/- for the purpose of court fee and the order was correct and there is no illegality in the order so as to attract jurisdiction under Section. 115 of the Code of Civil Procedure. It is also contended that court fee should be paid on the basis of the present market value.

2. Section 40 of the Kerala Court Fees and Suits Valuation Act, 1959 says that in a suit for cancellation of a decree for money or for other properties, court fee shall be computed on the value of the subject matter of the suit and said value shall be deemed to be the amount or the value of the property for which the decree was passed or other documents were executed. Therefore, according to the petitioner the original suit valuation is the proper valuation. According to the petitioner original valuation should be adopted when a suit is for cancellation of an earlier decree filed.

3. In the decision reported in Appikunju Meerasaya v. Meeran Pillai (1964 KLT 895), it was held that when a suit is filed to cancel a decree passed in respect of immovable properties, value of the property which is the subject matter of the previous suit must be the market value of that property on the date of filing of the new suit and ad valorem court fee on that value has to be paid. Section 40 mentions, fee shall be computed on "the subject matter of the suit" and not the "value of the suit" already filed. Valuation of suit must be on the market value of the subject matter of suit on the date of filing of the new suit. A Division Bench of the Madras High Court in Narasamma vs. Satyatiarayana (AIR 1951 Madras 793) also held that in a suit for cancellation of decree, court fee should be paid on the basis of the market value of the property which formed part of the subject of the previous suit, as valued on the date of filing of the new suit. No contrary decisions were pointed out. Therefore I accept the order of the court below and hold that the present market value of the property on the date of filing of the new suit should be taken for the purpose of valuation of court fees.

4. In the impugned order the learned Sub Judge mainly relied on the commission report. Advocate Commissioner visited the property many times in the presence of the plaintiff and petitioner. The documents shown to Mm were considered by him. When he visited the property comparable prices were shown to Mm. He found that there is paramabs and DCW lands with improvements. Considering the parambas and DCW lands he fixed the value at Rs. 650/- percent on an av