The main legal point established is that the executant of a deed seeking its annulment is required to pay ad-valorem court fees, as highlighted in Suhrid Singh @ Sardool Singh v. Randhir Singh & others, AIR 2010 SC 2807.

JUDGMENT

A.K. Rath, J. - This petition challenges the order dated 9.11.2018 passed by the learned Civil Judge (Sr. Divn.), Angul in C.S. No.267 of 2014, whereby and where under the learned trial court allowed the application of the defendant no.1 filed under Order 7, Rule 11(c) C.P.C. and directed the plaintiff to pay ad-valorem court fees.

2. Since the dispute lies in a narrow compass, it is not necessary to recount in detail the cases of the parties. Suffice it to say that the plaintiff-petitioner instituted the suit for declaration of title and declaration that the sale deed dated 03.04.2010 executed by him in favour of defendant no.1 as null and void. The defendant no.1 entered contest and filed a written statement denying the assertions made in the plaint. While the matter stood thus, the defendant no.1 filed an application under Order 7, Rule 11(c) C.P.C. stating inter alia that the plaintiff has instituted the suit for declaration that the registered sale deed as void. Though the plaintiff valued the suit at Rs. 33,99,000/-, i.e., the consideration amount of the sale deed, but paid declaratory court fees on the plaint instead of ad-valorem court fees. The plaintiff is the executant of the sale deed. He seeks its cancellation. He has to pay ad-valorem court fees. Plaintiff filed objection to the said application. Learned trial court came to hold that the plaintiff is the executant of the sale deed bearing No.10011001803 dated 03.04.2010. He seeks relief of cancellation of the sale deed. Thus he has to pay the ad-valorem court fees. Held so, it directed the plaintiff to pay the ad-valorem court fees.

3. Heard Mr. Samir Kumar Mishra, learned Advocate for the petitioner.

4. Mr. Mishra, learned Advocate for the petitioner, submits that the sale deed is a nominal one. No consideration has been passed. The defendant no.1 has given an undertaking in the presence of the witnesses that the sale deed has been executed without consideration. In view of the same, the plaintiff can put his own valuation and pay the court fees. Learned trial court is not justified in directing the plaintiff to pay the advalorem court fees. To buttress the submission, he places reliance on the decisions of the Calcutta High Court in the cases of Smt. Gita Debi Bajoria v. Harsh Chandra Saw Mill and other, AIR 1971 Calcutta 202, Smt. Ranjani Bala Rakshit v. Biswanath Rakshit and other, AIR 1981 Calcutta 189 and this Court in the case of Smt. Nakhyatramali Debi v. Chandrasekhar Pattnaik and other, AIR 1977 Ori.161.

5. The sole question that hinges for consideration as to whether the plaintiff, who is a party to the sale deed and seeks declaration that the sale deed is void, shall pay the advalorem court fees or not ?

6. The subject matter of dispute is no more res integra. In Suhrid Singh @ Sardool Singh v. Randhir Singh & others, AIR 2010 SC 2807, the apex Court held:

"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B' -- two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If 'B', who is a