JUDGMENT

Fraser, J C - In June 1922, Jaggan Nath obtained a decree for Rs. 13,434, against his late partner Ram Nath. In the present suit Ram Nath has sought a declaration that this decree was obtained by fraud and that it is not binding on him. The suit was brought on a Rs. 10 stamp on the supposition that it was one for simple declaratory relief under Article 17, Clause (3), Schedule 2, Court-fees Act. Defendant raised a preliminary objection that it should bear an 'ad valorem' stamp on the relief claimed under the provisions of Section 7, Clause (4)(c) of the Act. This plea was accepted by the Sub-Judge who allowed plaintiff 20 days' grace within which to make good the deficient court-fees. On his failure to do so the Sub-Judge rejected the plaint. It is against this order of rejection that the present appeal is filed. Plaintiff relies on a ruling of the Calcutta High Court of the year 1903, Zinnatunness Khatun v. Govinda Nath Mukerjee (1903) 30 Cal. 788, which followed a Bombay ruling printed as Sagaji Rao v. S. Smith (1896) 20 Bom. 736. The Judges remarked:

The safest course in these cases is to ascertain what the plaintiff actually asks for by hic plaint and not to speculate upon what may be the ulterior effect of his success. It may very well be that as the result of setting aside the decree in question some ulterior benefit may directly or indirectly flow to the plaintiff. But what we have to look at is what he asks for by his plaint.

2. The correctness of this decision has been doubted by practically every other High Court in which it has been considered. The Judges of the same Court mentioned it with some diffidence themselves in Bagala Sundari Debi v. Prosanna Nath Mukerjee 1917 Cal. 668. In the case, then before, them they allowed the suit to be brought on a Rs. 10 stamp because the decree itself which was sought to be set aside was of a declaratory, not of a mandatory, character. I venture to think that in deciding Zinnatunness Khatun v. Govinda Nath Mukerjee (1903) 30 Cal. 788, the Judges overlooked the proviso to Section 42, Specific Belief Act, which prohibits the grant of declaratory relief where consequential relief is available. A clear discussion of the case law on the subject is contained in Booa Ditta v. Ladha Mal 1919 Lah. 63. In this the Judges of the Lahore High Court refused to follow the Calcutta decisions and adopted the ruling of the Madras High Court in Arunachalam Chetty v. Rangaswamy Pillai 1915 Mad. 948 followed in a later ruling of the same Court, Kakkadu v. Chandrayya 1919 Mad. 223. To the same effect are decisions of the Patna High Court in 1919, Brij Krishna Das v. Murli Rai 1920 Pat. 656 and of the Nagpur Judicial Commissioner's Court in 1920, Baldev Persad v. Ghasi Ram 1920 Nag. 243.

3. I consider that the rulings of these four Courts must be followed Moreover in the present instance the ruling of the Calcutta Court does not substantially benefit the present plaintiff. It is true that he asks for a declaration that the previous decree should be declared to be void against him. This however is much more than a mere declaration. It is tantamount to a very substantial and practical relief, namely that he shall be saved from the liability of making good the monetary decree which has been passed against him, a decree which is not only capable of execution, but which is in fact being executed. It would therefore be a mere misuse of terms in the present instance to hold that plaintiff seeks a declaration alone. Nor would the mere declaration that the decree was obtained by fraud be of any practical assistance to him, for the decree itself would stand and would be capable of execution against him. I therefore agree with the Sub-Judge in holding that court-fee should have been paid under Clause (4)(c). Section 7. The Sub-Judge's order is therefore upheld. Appeal dismissed.