PADMINI v. C.O.MARYKUTTY

“C.R.”V. CHITAMBARESH, J--------------------------------OP(C) NO. 3608 OF 2011------------------------------------Dated this the 3rd day of September, 2012JUDGMENTShould court fee be paid under the Kerala Court Feesand Suits Valuation Act, 1959 (the 'Act' for short) on themarket value of the property in a claim petition preferredunder Rule 58 of Order XXI of the Code of Civil Procedure,1908(the 'CPC' for short)?2.The petitioner herein had preferred a claim underRule 58 of Order XXI of the CPC when the subject propertywas attached in execution of a decree obtained by the firstrespondent against the second respondent. The executioncourt however rejected his claim petition on the ground thatno valuation statement had been filed and that the same oughtto have been valued akin to a plaint in the suit. The executioncourt relied on Section 17 of the Act which reads as follows:“17. Fee payable on petitions,applications, etc.-- The provisions of Sections 10to 14 shall apply mutatis mutandis to thedetermination and levy of fee in respect of petitions,applications and other proceedings in Courts in the 2OP(C) No. 3608/2011same way as they apply to the determination and levyof fee on plaints in suits”.The rejection of the claim petition without any adjudication isimpugned in this Original Petition under Article 227 of theConstitution of India with a further prayer to direct theexecution court to consider the same on merits.3.I heard Mr. S. Ananthakrishnan, Advocate on behalfof the petitioner and Mr. George Joseph Ittankulangara,Advocate on behalf of the first respondent.4.All questions relating to right, title or interest in theproperty attached arising between the parties to a proceedingor their representatives shall be determined by the courtdealing with the claim or objection and not by a separate suit.The execution court in accordance with its determination canallow or disallow the claim or objection and release theproperty from attachment either wholly or partly or pass suchother order as the circumstances deem fit. The order madeadjudicating the claim or objection shall have the same forceand be subject to the same conditions as to appeal or otherwiseas if it were a decree. I would have relegated the petitioner to 3OP(C) No. 3608/2011file an appeal had the claim been adjudicated on merits or to asuit had the claim petition been not entertained by theexecution court. But the instant case is one where the claimpetition had been rejected as defective for alleged non-paymentof sufficient court fee which could ofcourse be scrutinized in anOriginal Petition of this nature.5.I shall immediately refer to Section 21 of the Actwhich reads as follows:“21. Fee how reckoned-- The fee payableunder this Act shall be determined or computed inaccordance 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 andpetition under Section 47 and Order XXI Rules 58 and 90 of theCPC and the same is as follows:“(i)Application or petition under Section47 and order XXI, Rules 58 and 90 of the Codeof Civil Procedure, 1908--(i)when filed in a Revenue Courtor a Munsiff's court[Ten rupees](ii)When filed in a Sub-Court or a DistrictCourt,[Twenty fiverupees](iii)when filed in th High Court[Fifty rupees]” 4OP(C) No. 3608/2011The petitioner had paid the requisite court fee of Rs. 10/- in theclaim petition preferred under Order XXI Rule 58 of the CPCsince the suit from which the execution arose was instituted inthe court of the Munsiff. Section 17 of the Act can have noapplication to a claim petition preferred under Order XXI Rule58 of the CPC which is governed by Schedule II Article 11 (i) (i)of the Act only. Section 17 of the Act being general hasobviously to give way to Schedule II Article 11 (i)(i) of the Actwhich is specific (see Gurram Seetharam Reddy Vs. GuntiYashoda and another [2004 (6) ALT 111 (F.B.]. Theexecution court egregiously erred in rejecting the claimpetition as defective for not filing the valuation statement andnot paying court fee on the basis of market value of theproperty as in a suit.6.I am also reminded of the following excerpt from adecision of the Division Bench of this court in PadmanabhanVs. Shriram Chits & Investments (P) Ltd. [1995 (2) KLT61]:“The fact that the amended provisions inOrder XXI Rule 58 CPC provide for settlement ofall claims to the property attached in the 5OP(C) No. 3608/2011execution proceedings itself may not be asufficient reason to hold that the orders passedunder the above provision adjudicating a claimis the result of an exercise of originaljurisdiction even as regards the claimants. Itmay be true that in a claim proceeding theexecution court may also be bound to adjudicatethe claim in its entirety as if it is a court of firstinstance. It may also be true that the orderpassed as a result of such adjudication may havethe force of a decree for the purpose of appealunder the provisions of Order XXI Rule 58 (4)CPC. But whatever may be the scope and ambitof the enquiry to be conducted and the legaleffect of the result of the adjudication, still thejurisdiction actually exercised can never betreated as anything different from that of anexecution court. The jurisdiction exercisedthough may be wide and akin in many respectsto original jurisdiction it will still be subject toall the limitations of the jurisdiction of theexecuting court. The proceedings will remain asproceedings initiated on the execution side ofthe court in contrast to the original side of thecourt”.(emphasis applied)7.I set aside the impugned order and direct the courtof 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 theparties to the proceedings.The Original Petition is allowed. No costs.V. CHITAMBARESH JUDGEncd