In a suit to set aside a decree where property has been sold in execution of the decree and possession given, and where recovery of possession of the property so sold is sought, court-fee is payable on the value of the relief as fixed and stated by the plaintiff under Section 7(iv)(c) of the Court Fees Act, 1870.

Khosla, J.

1. The following question has been referred to the Full Bench: "Whether the valuation for court-fees 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 in the suit, falls under Section 7 (iv) (c) of the Court-Fees Act, and if not what court-fee is payable?"

2. The matter arose in the following manner. The plaintiff Vishwa Nath, a minor, brought a suit for a declaration, that two decrees passed on the basis of awards were null and void as against him. He also prayed for possession of the property affected by the decree by way of consequential relief. This property belonged to the plaintiffs father, Kahan Chand and he effected a mortgage in favour of Shrimati Sita Bai for a sum of Rs. 20,000/-. The transaction was the subject-matter of an award which was made a rule of the Court. A decree in ferms of this award was passed by the Senior Sub-Judge, Amritsar, on the 21st of August 1945. Execution of this decree was taken out but the mortgaged property has not so far been sold. A second award was also made in favour of Shrimati Sita Bai and this too was made a rule of the Court whereby a decree for Rs. 29,000/- odd was passed in favour of the mortgagee, Shrimati Sita Bai on the 21st of August 1945. Execution of the second decree was taken out and some part of the mortgaged property was put up to sale and purchased by the decree-holder. The sale was confirmed by the executing Court on the 1st of March 1947 and Shrimati Sita Bai took possession of the property.

3. In the present suit, Vishwa Nath challenged both these decrees and prayed that in respect of the first decree an injunction should be issued against the decree-holder prohibiting her from executing the decree and in respect of the second decree he should be given possession of the property sold and purchased by the decree-holder. The plaintiff valued each of the reliefs claimed at Rs. 130/- for purposes of jurisdiction and at the same figure for purposes of court-fee. Objection was taken that the amount of court-fee on the plaint was insufficient and the trial Judge upheld the objection holding that court-fee was payable on the total value of the two decrees, namely, on the sum of Rs. 42,831/14/3. The deficiency in court-fee was not made up and the plaint was, in due course, rejected under Order VII, Rule 11, Civil Procedure Code. On appeal, the learned Senior Subordinate Judge upheld the decision of the trial Court. A second appeal was brought to this Court and the matter came up before Kapur, J., who decided in favour of the plaintiff with regard to the first decree in which execution had not been taken out, but held that with regard to the relief claimed in respect of the second decree the plaintiff was bound to pay ad valorem court-fee on the ground that the relief claimed by him was really the possession of the property sold in execution proceedings, and he must therefore pay court-fee under Section 7(v) of the Court-Fees Act. An appeal filed under Clause 10 of the Letters Patent came up before my Lord the Chief Justice and my brother Falshaw sitting in Division Bench, and they decided to refer the question to a larger Bench. The case was argued at considerable length before us, and a great number of rulings were cited and discussed.

4. We are only concerned with the plaintiffs claim with regard to the second decree, namely, his claim for a declaration that the decree be declared null and void because the alienations upon which it is based were without consideration and necessity and (by way of consequential relief) for possession of the property purchased by Shrimati Sita. Bai. The question for consideration is whether a relief of this type is a relief for a declaration with a consequential relief under Section 7 (iv) (c) or is in essence a possessory relief coming under Section 7 (v) or Schedule I. Article 1, of the Court-Fe