In a partition suit, the plaintiffs are not required to pay court fee for the incidental finding that their interest in the suit property could not be affected by any of the decrees against their co-sharers.

J. K. MISRA, J.

( 1 ) THE petitioners are the plaintiffs in T. S. No, 19 of 1956 in the Court of the Subordinate Judge, Berhampur. That suit is one for partition of a joint ancestral house belonging to the plaintiffs and defendants 1 to 4. Defendant No. 1 is the father of the plaintiffs, and defendant No. 2 is the brother of the latter. Defendant No, 3 is the son of defendant No. 2 and defendant No. 4 is the mother of defendants Nos. 1 and 2. According, to the plaintiffs, they have got 5/18 share in that house, defendant No. 1 has got 1/18 share, each of defendants 2 and 3 has got 3/18 share, and defendant No. 4 has got 6/18 share. There was a money suit (No. 15 of 1949) against the deceased grandfather of the plaintiff and defendants 1 and 2, and. in execution of the decree in the said suit by defendant No. 5 (E. P. No. 34 of 1952), the suit house was attached and put to auction sale. Defendant No. 6 purchased the said house in auction sale and deposited the sale proceeds, and before the sale was confirmed, the present suit by the plaintiffs was instituted for partition. Defendants 6 to 9 were other creditors who had got money decrees against defendants 1 and 2, and they advanced their claims for rateable distribution in the aforesaid execution, proceeding. The plaintiffs' case in the plaint, in substance, was that the decretal debts of defendants 5 to 9 against defendants 1 and 2 were not for the benefit of the family or any legal necessity; and that they were immoral debts, and as such not binding on the plaintiffs, and so the plaintiffs were entitled to a partition of their share of the attached house. In the relief portion of the plaint, no declaration was sought for in respect of any of those decretal debts. Claiming that the plaintiffs were still in possession, of the ancestral house, they paid court-fee in the suit, as payable in a partition suit. There was no issue raised as to the insufficiency of court-fee paid in the case. But at the commencement of the hearing, the learned trial court took the view, "i find that the suit in substance is to avoid, the decree passed in M. S. 15 of 1949. . . . . The suit cannot be considered to be for a mere partition of the plaint schedule properties. . . . The plaintiffs are bound to pay a set of declaratory court fee of Rs. 150/ -. . . . . . . In case the plaintiffs really desire to attack other decrees, referred to in the plaint. . . They have to pay one set of declaratory court fee for each decree in question". It is against this order of the court, the plaintiffs have come up in revision.

( 2 ) A preliminary objection was taken that since the plaintiffs moved the trial court for reviewing the said order and the review petition was pending before that court, a petition in revision was not maintainable. Section 115, C. P. C. does not permit revision only in those cases in which appeal lies, and the filing of a reviewing petition does not take away parties' right to invoke the court's power under Section 115, C. P. C. So, the preliminary objection is of no substance.

( 3 ) NOW coming to the merit of the case, it may be stated at the outset that, in the reliefs claimed in the plaint, the plaintiffs claimed no relief in respect of the decrees, which they referred to in the pleading, and the relief claimed was confined only to partition of the house to their respective shares. Though in the pleading they averred that those decrees, for one of which the house had been attached and for the other of which rateable distribution had been claimed, were not binding on them, and as such they were entitled to their share of the house irrespective of those decrees, there was no prayer for any declaration that the decrees were not binding on them. It was observed in Ramakhelwan Sahu v. Bir Surendra Sahi, AIR 1938 Pat 22 (FB ).

"it is not in the least necessary for the plaintiff in a suit for possession to claim a declaration. Indeed declarations in the true sense are rarely required. The pl