ORDER:- The lower Court has rightly appreciated the position. Having regard to the circumstances stated by it in an elucidatory order, the suit ought to have been valued under section 40 (1) of the Tamil Nadu Court-fees and Suits Valuation Act. This is a suit in which, effectively, the plaintiffs are seeking to set aside a judgment of a Division Bench of this Court passed in L.P.A.No. 68 of 1966 on 24th October, 1972. The question is whether the lower Court was right in having directed the plaintiffs to evaluate the property as on the date of the filing of the suit or should it have said that the market value should be on the basis of the value of the property as disclosed in the earlier proceedings. In the earlier proceedings, the first plaintiff was not a party. It was the second plaintiff who was conducting the litigation as purchaser of the property from the first plaintiff. This distinguishing feature has to be borne in mind. The plaintiffs, therefore, have come to Court though conjointly, to set aside, as I said, effectively, the judgment of this Court which relates to immovable property. In these circumstances, it is obligatory that they should value the subject-matter of the suit as on the date when a fresh suit is filed by parties who are not the same parties who agitated in the earlier proceedings. For the reason that the parties to the present suit were not the parties in the earlier proceedings and. also on the ground that the relief asked for in the present action is primarily for setting at naught the judgment of the Division Bench of this Court in the L. P. Appeal mentioned above, I am of the view that the suit has to be valued uder section 40 (1) of the Court-fees Act. The next corollary is, as to what is the value to be adopted by the plaintiffs. The learned counsel for the plaintiff-petitioners would say that it is enough if the value as disclosed in the earlier proceedings is adopted in the present action. But, as I said, the distinguishing feature in this case, is the plaintiffs in the present suit are not the same parties who participated in the earlier proceedings. This apart, I am inclined to follow the judgment of Sada-sivam, J., in Sengoda Nadar v. Doraiswami Gounder1, which in turn, referred to a full bench decision in Kutumba Sastri v. Sundaramari2, and held that the suit has to to be valued by giving the market value of the properties covered by the judg-ment of this Court in the earlier suit as on the date of the plaint. The lower Court, therefore, was right in having come to the conclusion that, in the circumstances of the case, the property has to be valued under section 40 (1) and not uder section 25 (b) and that it has to be evaluated as on the date of the plaint. There is no reason to interfere with the said conclusion. The civil revision petition is dismissed. There will be no order as to costs. The petitioners are granted two months’ time to pay the Court-fee.
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