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2012 DIGILAW 820 (KER)

Padmini v. C. O. Marykutty

2012-09-03

V.CHITAMBARESH

body2012
JUDGMENT : 1. Should court fee be paid under the Kerala Court Fees and Suits Valuation Act, 1959 (the 'Act' for short) on the market value of the property in a claim petition preferred under Rule 58 of Order XXI of the Code of Civil Procedure, 1908(the 'CPC' for short)? 2. The petitioner herein had preferred a claim under Rule 58 of Order XXI of the CPC when the subject property was attached in execution of a decree obtained by the first respondent against the second respondent. The execution court however rejected his claim petition on the ground that no valuation statement had been filed and that the same ought to have been valued akin to a plaint in the suit. The execution court relied on Section 17 of the Act which reads as follows: "17. Fee payable on petitions, applications, etc.--The provisions of Sections 10 to 14 shall apply mutatis mutandis to the determination and levy of fee in respect of petitions, applications and other proceedings in Courts in the same way as they apply to the determination and levy of fee on plaints in suits". The rejection of the claim petition without any adjudication is impugned in this Original Petition under Article 227 of the Constitution of India with a further prayer to direct the execution court to consider the same on merits. 3. I heard Mr. S. Ananthakrishnan, Advocate on behalf of the petitioner and Mr. George Joseph Ittankulangara, Advocate on behalf of the first respondent. 4. All questions relating to right, title or interest in the property attached arising between the parties to a proceeding or their representatives shall be determined by the court dealing with the claim or objection and not by a separate suit. The execution court in accordance with its determination can allow or disallow the claim or objection and release the property from attachment either wholly or partly or pass such other order as the circumstances deem fit. The order made adjudicating the claim or objection shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. I would have relegated the petitioner to file an appeal had the claim been adjudicated on merits or to a suit had the claim petition been not entertained by the execution court. I would have relegated the petitioner to file an appeal had the claim been adjudicated on merits or to a suit had the claim petition been not entertained by the execution court. But the instant case is one where the claim petition had been rejected as defective for alleged non-payment of sufficient court fee which could ofcourse be scrutinized in an Original Petition of this nature. 5. I shall immediately refer to Section 21 of the Act which reads as follows: "21. Fee how reckoned-- The fee payable under this Act shall be determined or computed in accordance with the provisions of this Chapter, Chapter VI, Chapter IX and Schedules I and II". Article 11 (i) (i) of Schedule II of the Act dealing with ad-valorem fees specifically mentions about application and petition under Section 47 and Order XXI Rules 58 and 90 of the CPC and the same is as follows: "(i) Application or petition under Section 47 and order XXI, Rules 58 and 90 of the Code of Civil Procedure, 1908-- (i) when filed in a Revenue Court or a Munsiff's court - [Ten rupees] (ii) When filed in a Sub-Court or a District Court - [Twenty five rupees] (iii) when filed in the High Court - [Fifty rupees]" The petitioner had paid the requisite court fee of Rs. 10/-in the claim petition preferred under Order XXI Rule 58 of the CPC since the suit from which the execution arose was instituted in the court of the Munsiff. Section 17 of the Act can have no application to a claim petition preferred under Order XXI Rule 58 of the CPC which is governed by Schedule II Article 11 (i) (i) of the Act only. Section 17 of the Act being general has obviously to give way to Schedule II Article 11 (i)(i) of the Act which is specific (see Gurram Seetharam Reddy Vs. Gunti Yashoda and another [2004 (6) ALT 111 (F.B.]. The execution court egregiously erred in rejecting the claim petition as defective for not filing the valuation statement and not paying court fee on the basis of market value of the property as in a suit. 6. I am also reminded of the following excerpt from a decision of the Division Bench of this court in Padmanabhan Vs. The execution court egregiously erred in rejecting the claim petition as defective for not filing the valuation statement and not paying court fee on the basis of market value of the property as in a suit. 6. I am also reminded of the following excerpt from a decision of the Division Bench of this court in Padmanabhan Vs. Shriram Chits & Investments (P) Ltd. [1995 (2) KLT 61]: "The fact that the amended provisions in Order XXI Rule 58 CPC provide for settlement of all claims to the property attached in the execution proceedings itself may not be a sufficient reason to hold that the orders passed under the above provision adjudicating a claim is the result of an exercise of original jurisdiction even as regards the claimants. It may be true that in a claim proceeding the execution court may also be bound to adjudicate the claim in its entirety as if it is a court of first instance. It may also be true that the order passed as a result of such adjudication may have the force of a decree for the purpose of appeal under the provisions of Order XXI Rule 58 (4) CPC. But whatever may be the scope and ambit of the enquiry to be conducted and the legal effect of the result of the adjudication, still the jurisdiction actually exercised can never be treated as anything different from that of an execution court. The jurisdiction exercised though may be wide and akin in many respects to original jurisdiction it will still be subject to all the limitations of the jurisdiction of the executing court. The proceedings will remain as proceedings initiated on the execution side of the court in contrast to the original side of the court". (emphasis applied) 7. I set aside the impugned order and direct the court of the Munsiff of Vaikom to dispose of E.A. No. 253/2011 in E.P. No. 92/2010 in O.S. No. 87/2008 on merits after hearing all the parties to the proceedings. The Original Petition is allowed. No costs.