A defendant is entitled to challenge the categorization of a suit under the Court Fees Act in revision, even at the instance of the defendant.

1. This Civil Revision Petition has been referred to a Full Bench by Mr. Justice Kumara Pillai in view of the fact that a preliminary objection regarding the maintainability of the same was raised by the respondent at the time of hearing.

2. The defendant in O.S. No. 52 of 1954 of the Subordinate Judge's Court, Palghat, is the petitioner in this Civil Revision Petition. He challenges the order of the learned Subordinate Judge, dated 26th March 1958 holding that the suit as framed comes within the ambit of S.7 (4)A of the Indian Court Fees Act, 1870, as amended in the Madras State.

3. The contention raised by the defendant was that the suit comes within the ambit of suits provided under S.7, Clause.5, of the said Court Fees Act. As mentioned earlier, the learned judge overruled the objections of the defendant and held that the suit has been properly valued and court fees paid as per the provisions of S.7 (4)A of the said Court Fees Act. It is this order that is challenged by the defendant in this Civil Revision Petition.

4. At the time of hearing before Mr. Justice Kumara Pillai, objection appears to have been taken by the respondent-plaintiff that in circumstances like this there is a finality attached to the order of the lower court by virtue of S.12 of the Court Fees Act. The order having been passed in favour of the plaintiff it is not open to the defendant to challenge the same by way of revision under S.115 of the Code of Civil Procedure. The preliminary objection seems to have been raised by the plaintiff on the basis of the decision of the Travancore-Cochin High Court reported in Mathews Kathanar v. Easus Kathanar,1955

KLT.17.

5. As the learned judge felt that an authoritative pronouncement about the maintainability of a revision, at the instance of the defendant, under circumstances like this has to be given by the High Court, he has referred the matter for hearing and disposal before a Full Bench.

6. The extent of finality attached to matters like this and contemplated by S.12 of the Court Fees Act, 1870, has been considered and laid down by the Supreme Court in the decision reported in Nemi Chand and another v. Edward Mills Co. Ltd., AIR. 1953 S.C. 28.

7. The decision of the Supreme Court as well as the scope of the decision of the Travancore-Cochin High Court referred to above, have all been considered by one of us (Mr. Justice Vaidialingam) in Sankaran Nadar Lakshmanan Nadar v. Varathan Nadar Krishnan Nadar (1960 K.L.T. 1297). The question that arose in the said Civil Revision Petition was as to whether a defendant is entitled to challenge by way of revision an order of the trial court regarding the category under which a particular suit falls. A preliminary objection about the maintainability of the Civil Revision Petition by a defendant was raised before the learned judge in the said matter also. The same is the position before us also because, according to the plaintiff the suit comes within the ambit of suits contemplated under S.7 (4) A of the Court Fees Act whereas according to the defendant-petitioner the suit comes within the class of suits mentioned in S.7(5) of the Court Fees Act. The learned Subordinate Judge has held in favour of the plaintiff. Therefore, the question raised in this Civil Revision Petition is regarding the correctness of the decision of the learned Subordinate Judge that the suit comes within the ambit of S.7 (4)A of the Court Fees Act and that it does not come under S.7 (5) of the Court Fees Act.

8. After a consideration of the various decisions, the learned judge has held in Sankaran Nadar Lakshmanan Nadar v. Varathan Nadar Krishnan Nadar, (1960 K.L.T. 1297) that where questions relating to the category under which a particular suit comes have been wrongly decided that decision is open to be challenged in revision even at the instance of the defendant

9. We are in full agreement with the decision of the learned judge in, Sankaran Nadar Lakshmanan Nadar v. Varathan Nadar Krishnan N