Madras High Court
K. Loganthan vs Rajalakshmi And Ors. on 12 February, 2007
Equivalent citations: (2007)2MLJ748
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
ORDER S. Ashok Kumar, J.
1. This revision has been preferred by the revision petitioner/plaintiff challenging the return of the Plaint for payment of court fee under Section 40(1) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955.
2. According to the revision petitioner/plaintiff, pursuant to a money decree, a bungalow situated in Court Road, Cuddalore was brought to auction in E.P. No. 21 of 2000 in O.S.No: 790 of 1999. The revision petitioner/plaintiff was the successful bidder and he deposited a sum of Rs. 11,55,000/= into court. The sale was confirmed on 3.12.2003. Nine ordinary judgment debtors shared the consideration deposited into the court. This had happened in the year 2003-2004. Thereafter it came to light that the 11th defendant in the present suit (SR.8695/2006) had filed even in the year 2000 O.S. No. 166 of 1999 against the same judgment debtors. That suit was on a mortgage. The final decree in the suit was also passed on 8.12.2005. Even though the said suit was instituted, preliminary and final decrees were passed in the same court, in which the Execution Proceedings also took place, the pendency of the mortgage suit was not disclosed at all. Thus the 11th defendant as a mortgage decree holder has sought to bring the same property purchased by the petitioner for execution to satisfy the mortgage decree. It is in the present circumstance, the present suit has been filed by the revision petitioner/plaintiff, who is the purchaser of the property in the court auction with a prayer that various orders passed rateably paying the sale proceeds to the decree holders be set aside under Section 73 CPC and consequently to direct the defendants to refund the monies received by them in the Execution Proceedings so that it could be rateably redistributed after satisfying the mortgage decree. According to the plaintiff, the suit is maintainable under Section 73(2) CPC.
3. The main issue is as to the payment of court fee payable on such a suit. According to the plaintiff, the suit could be valued only under Section 50 of the Tamil Nadu Court Fees and Suit Valuation Act since the plaintiff does not seek to set aside the decree under which the defendants obtained their money decree or the mortgage decree. The plaintiff also does not seek to get the monies which was earlier distributed among various decree holders. All that he seeks is that the sale consideration of the property purchased by him in the Court auction be redistributed among all the decree holders including the mortgage decree holder in O.S. No. 166 of 1999 who is the 11th defendant in the present suit.
4. As seen from the plaint papers, it is seen that originally the suit has been filed on the file of the Subordinate Judge, Cuddalore. The learned Subordinate Judge, Cuddalore after making several returns and representation of the plaint, ultimately by order dated 6.9.2006, returned the plaint with a direction to file the same before proper court holding that since the suit is to be valued on the market value of the suit property viz., under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act, the Subordinate Judge's Court does not have the pecuniary jurisdiction to entertain the suit. Thereafter the Plaint was presented before the learned Principal District Judge. The learned Principal District also returned the papers as to the maintainability of the suit and also the court fees payable on the said suit. Learned Counsel for the plaintiff placing reliance on the decision of this Court in C.P. Vasantarajan and Ors. v. Rani Parvathammani Garu and Ors. 1953 (II) MLJ 493 represented the papers that the suit is maintainable under Section 73(2) CPC and also stating that only Section 50 of the Court Fees Act applies and not Section 40 of the Act. However, by the impugned order, the learned Principal District Judge, Cuddalore returned the Plaint holding that the suit is for setting aside the orders pased in E.As in O.S. No. 190 of 1999 and refund of money, Section 40 of the Court Fees Act only attracted in the instant suit and therefore the court fee has to be paid as provided for in Section 40 of the said Act. Aggrieved over the same, the present revision has been filed by the plaintiff.
5. The relevant provision in Section 73(2) CPC reads as follows:
Where all or any of the assets liable to be rateably distributed under this Section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.
6. From the above it is clear that when the plaintiff purchased the property in court auction, the sale consideration becomes in effect assets of the court to be distributed among all the persons entitle thereto. Hence the plaintiff claiming the assets does not arise. It is merely a distribution of assets among all the persons entitled thereto that is sought to be enforced in the present suit. The suit as such is only to set aside the order in the execution proceedings and it does not amount to the decree.
7. Mr. B. Kumar, learned senior counsel appearing for the revision petitioner as to the maintainability of the suit contended that the suit has been laid under order VII R.1 CPC read with Section 73(2) CPC as indicated in the judgment of this Court reported in 1957 (2) 493, laid on a special status arising out of the parties in the two suits. According to the learned Counsel, the earlier distributions of assets were made for the unsecured creditors. After all these events were over, the later Execution Petition has been filed at the instance of the mortgage decree holder, the 11th defendant in the present suit with regard to the same property and at this juncture alone the present suit has been filed under Section 73(2) CPC.
8. It is further contended that after the assets were distributed after the auction at the instance of decree holders in the earlier suit, it is felt that the process of the court in which the earlier order of distribution were made wrongly and when the secured creditor/mortgage decree holder is having a decree, the said individual who is having a secured decree may have preference in making the claim of his decree over the unsecured creditors. Thus the exercise made is without taking note of the earlier secured decree, proved to be wrongly taken and the same orders may have to be recalled directing the persons so taken delivery of the assets to deposit the respective assets before the court from which the same has been taken. For determining the same, the valuation must be under Section 50 of the CPC and not under Section 40 of the CPC.
9. According to the learned senior counsel, the order passed on the EAs in the rateable distribution proceedings are only an order which means formal expression of "any decision of a civil court" which is not a "decree" a contemplated under Section 2(14) of CPC.
As a general rule an order by a court of law is founded on objective consideration and as such the judicial order must contain discussion of the question at issue an the reasons which prevailed with the court to pass the order. In the case on hand passed by the trial court it is only an arithmetical calculation taking into consideration of the assets available viz., the claim of each decree holder and the result would be the reateable distribution taking into account of the things in its entirety. This being so, the assumption of the court below as the decree sought to be set arise is involved in the present suit and hence based on the said assumption it came to the conclusion that the value must be under Section 40 of the Act and not under Section 50 of the Act which is erroneous and liable to be set aside.
10. Mr.B.Kumar, learned senior counsel appearing for the revision petitioner also contended that the present suit is filed for recalling the asset of the court viz., the funds ordered to be distributed rateably on the various E.As filed in the concerned Execution Petition in which the property in question was auctioned and the sale consideration deposited and out of which the above distribution was ordered. In effect, orders passed in the E.As are only the order and that order is not amounting to the decree as contemplated under Section 2(2) of the Code of Civil Procedure, wherein against the decree regular Appeal shall lie under Section 96 of the Civil Procedure Code. In these circumstances the assets sought to be redelivered to the concerned court can be assessed and valued only under Section 50 of the Tamil Nadu Court Fees and Suits Valuation Act and not under Section 40 of the said Act as directed by the court below.
11. A Division Bench of this Court in C. Kuppammal v. T. Natarajan reported in 86 LW 417 held that where the subject matter is only a particular allotment it is not capable of market value and the provision applicable would only be under Section 50 of the Act. In that context, Veeraswami, C.J., as he then was, held as follows:
2. In the instant case , however, it seems to us that the subject matter is neither the property for which the mortgage was executed nor the mortgage itself. The petitioner, as a mortgagee, is not asking for the property. Nor does it relate to the mortgage. His grievance appears to be against the allotment of the property mortgaged to him to a person other than the mortgagor. That being the limited relief, that the petitioner is interested in the suit, the subject matter, namely his grievance against the particular allotment, is not capable of market value. It follows that the court fee is not payable under Section 40(1). the provision that will be applicable is Section 50.
12. In the case on hand as well, the plaintiff as a mortgagee only wanted a reallotment of the properties in a partition auction. The plaintiff only wanted the property mortgaged to him by a sharer be allotted to mortgager. That being the limited relief, the manner of allotment being not capable of market value, Section 50 of the Court Fees Act alone is attracted. The above decision of this Court applies on all fours with the facts of the instant case. Here also, the plaintiff does not claim the money. He only wants to be rateable distribution of the auction money among all the decree holders including the mortgage decree holder.
13. The contentions of Mr.B.Kumar, learned senior counsel appearing for the revision petitioner merits acceptance for the reasons stated as above. In the circumstances this Court holds that the present suit filed is maintainable under Section 73(2) CPC and since the subject matter, namely, the allotment is not being capable of market value, the court fee has to be paid only under Section 50 of the Tamil Nadu Court Fees Act as the relief sought for is only ratable redistribution of the auction money among all the decree holders including the mortgage decree holder and the same will not amount to setting aside of the decree.
14. The CRP is allowed and the learned Subordinate Judge, Cuddalore is directed to take the suit on his file and dispose of the same within a period of two months from the date of receipt of a copy of this order. No costs.