In a suit for cancellation of a revenue sale, the court fee payable is governed by Section 40(1) of the Court Fees Act, and the plaintiff must pay court fee accordingly.

ORDER :- The civil revision petition has been filed against the order of the learned District Munsif, Tiruvannamalai, dated 23-3-1976 in O.S. No. 1207 of 1974. The plaintiff is the petitioner. He filed the suit for declaration to set aside the sale held by the revenue authorities on 9th July 1974, under the Revenue Recovery Act, in realisation of certain loans. contending that the sale was null and void. He paid court-fee under S.25(d) of the Court Fees Act. The Court Fee Examiner gave a check-slip pointing out that the proper provision under which the court-fee should have been paid was S.40(1) of the Court Fees Act. The matter came before the learned District Munsif for determining the question whether the court-fee paid by the plaintiff was correct and whether he had to pray for cancellation of the sale held on 9th Oct., 1973, in which event a higher fee became payable. After discussing the rival contentions he held that the plaintiff had to value the suit under S.40(1) of the Court Fees Act and seek also a prayer for cancellation of the revenue sale. The plaintiff has, therefore, filed the present civil revision petition questioning the legality of this decision.

2. Sec. 25 provides as follows -

"25. Suits for declaration - In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under S.26 -

(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees three hundred, whichever is higher;

(b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one half of the market value of the property or on Rupees three hundred, whichever is higher;

(c) Where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on Rs. five hundred, whichever is higher;

(d) In other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher."

3. It may be seen that the last clause viz., Cl.(d) would arise for consideration only if the prayer in the suit does not fall within the scope of Clauses (a) to (c). In the present case, there is no dispute about the prayer not falling within Cls. (a) to (c). In other words, if Section 25 were looked into, it would be necessary to refer only to Cl.(d) for the purpose of ascertaining the proper court-fee payable in the present case.

4. However, the other provision that is referred to is S.40, which runs as follows :-

"40(1) Suits for cancellation of decrees, etc.- 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;

If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less;

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