Mortgage Decree - The decree against the father is a good decree against a son and unless the decree is set-aside it would remain executable.

Hemant Gupta, J.

1. The defendants are in revision petition aggrieved against the order passed by the learned trial court whereby the plaintiff was required to pay Court fee on the ten times value of the land revenue in respect of the land in dispute.

2. The plaintiff-respondents have filed a suit for declaration claiming that they are owners in possession in equal shares of the land in dispute measuring 17 kanals 12 marlas and that the sale deeds dated 24.6.1999 executed by defendant No. 6 in favour of defendant Nos. 1 to 5 is illegal, null and result of fraud etc. The said declaration was sought on the ground that the land in dispute is ancestral and that the same has been sold by defendant No. 6 without any legal necessity and consideration.

3. Learned trial Court vide the impugned order decided the application filed by the defendant-petitioners for directing the plaintiffs to pay requisite ad valorem court fee on the value of the sale deed. The learned trial Court, after examining the respective contentions of the parties, found that where documents sought to be avoided in respect of agricultural land are subject to the land revenue then the ad valorem court fee is payable not on the value of the property but on value which is ten times of the land revenue.

4. Learned Counsel for the petitioners has vehemently argued that since the plaintiff has challenged the sale deed allegedly executed of the joint Hindu family property and therefore, the plaintiff is deemed to be party to the such sale deed. Therefore, the plaintiff is liable to pay ad valorem court fee in terms of provisions of Schedule-1 Article 1 of the Court Fee Act, 1870. Reference was made to a Full Bench judgment of this Court in Niranjan Kaur v. Nirbigan Kaur (1982) 84 P.L.R. 127.

5. Before considering the argument raised by the learned Counsel for the petitioners, it may be noticed that under Section 7(iv)(c) of the Court Fees Act, 1870, the amount of court fee is required to be paid on which relief is sought in the plaint i.e. when the relief is to obtain a declaratory decree or order and where consequential relief is prayed for. By virtue of Court Fee (Punjab Amendment Act, 31 of 1953), it is contemplated that in such suits, where the relief sought is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by Clause (v) of Section 7. The specific court fee, is contemplated under Sub-section (v), as payable in the suits for the possession of land, houses and gardens. Article 1 Schedule 1 contemplates ad valorem court fee for the plaint, written statement, pleadings or counter claim or memorandum of appeal if not otherwise provided for in the Act. Schedule 11 Article 17 Sub-clause (iii) contemplates that the plaint or memo of appeal in the suit to obtain declaratory decree where no consequential relief is prayed shall carry a fixed court fee of Rs. 19.50P. The Court Fee Act, 1870 in its applicability to Haryana has been amended. Sub-clause (v) of Section 7 has been substituted vide Act No. 22 of 1974 whereas as per Schedule Second Article 12 has been amended to provide for a fixed court fee of Rs. 25/- on a plaint or memorandum of appeal in the suit to obtain declaratory decree where no consequential relief is prayed for.

6. It has been held by a Full Bench of this Court in a judgment reported-as Vishwa Nath and Anr. v. Smt. Sita Bai Anand and Ors. that valuation for court fee of a suit to set aside a decree, where in execution of such decree property has been sold and possession given and where recovery of possession of the property so sold is sought, falls under Section 7(iv)(c) of the Act arid the court fee is payable on the value of the relief as fixed and stated by the plaintiff. It may be noticed that the said judgment was prior to insertion of Second proviso to Sub-section 7(iv) of the Act. It was held therein to the following effect:

Shrimati Sita Bai is in possession