Proper classification of the suit under the Kerala Court-Fees and Suits Valuation Act, 1959, and the payment of court fee.

1. This is a court-fee reference. The office note reads:

"The suit from which this S. A. arises was one for a declaration that the plaint schedule movables were belonging to the plaintiff and also for an injunction restraining the debts from effecting sale of those movables. The trial court and the lower appellate court had declared title of the plaintiff over the plaint moveables. Being aggrieved by those decrees the 3rd defendant has come up with this S. A. The plaintiff had rightly classified the suit under S.25 and paid court fee on the market value of the subject matter. In the lower appellate court also the relief had been valued under S.25(a) and court fee paid thereunder. Now at this second appeal stage the appellant 3rd defendant cannot recharacterise the suit as one for setting aside a summary decision and pay court fee under S.41 (2). The decree which is challenged in this S. A. being a declaratory decree this appeal should be classified under S.25(d)(i) and court fee paid thereunder. Returned. Time 10 days."

2. The appellant-society, who is the 3rd defendant in the suit out of which this Second Appeal arises, obtained an award for money against the 4th defendant in that suit under S.70 of the Kerala Co-operative Societies Act, 1969. Pursuant to the award as aforesaid and in execution thereof the Sales Officer attached certain movables which are the subject matter of the present suit. The plaintiff in the present suit preferred a claim under R.90(iii) of the Co-operative Societies Rules, 1969. This claim preferred by the plaintiff was rejected by the Sales Officer. The plaintiff therefore instituted the suit under R.90(iii) of the aforesaid Rules. The plaintiff sought a declaration of his ownership over the movables which were attached besides praying for setting aside the attachment order and to restrain by permanent injunction the Sales Officer from proceeding to sell the attached movables. The plaintiff valued these reliefs with reference to the market value of the attached movables and paid court-fee thereon under S 25 (a) of the Kerala Court-Fees and Suits Valuation Act, 1959. The office note mentions that the 'proper section of the Kerala Court-Fees and Suits Valuation Act, 1959 that governs the case is S.25 (d) (i) of the said Act. The appellant has proceeded on the basis that S.41 (2) of the Kerala Court-Fees and Suits Valuation Act governs the suit and on that basis he has paid court-fee in this Second Appeal

3. Explanation to S.41 (2) of the Act says that for the purpose of that section, the Registrar of Co-operative Societies shall be deemed to be a Civil Court. The suit contemplated by S.41 of the Kerala Court-Fees and Suits Valuation Act is one to set aside an attachment by a Civil or Revenue Court of any property, movable or immovable, or of any interest therein or of any interest in revenue, or to set aside an order passed on an application made to set aside the attachment. Under that section court-fee is to be computed on the amount for which the property was attached or on one-fourth of the market value of the property attached, whichever is less.

4. R.90 (iii) of the Co-operative Societies R.1969, employ the same language as R.63 in Order XXI of the Code of Civil Procedure, 1908, as it stood earlier to its amendment in 1976. Both R.90 (iii) and R.63 in Order XXI envisage a suit" to establish the right which he (the plaintiff) claims to the property in dispute". The property in dispute is the property to which a claim has been preferred pursuant to the attachment thereof.

5. The fact that the plaintiff seeks declaration of ownership over the attached properties would not make it a suit for declaration falling under S.25 of the Kerala Court-fees and Suits Valuation Act. So long as the substantial relief is in respect of an attachment order which is conclusive under R.63 in Order XXI of the Code and R.90 (iii) of the Co-operative Societies Rules, 1969, subject to the result of the suit, the dec