Full Judgment
Krishnaswami Ayyangar, J.
1. The question which arises for consideration in this matter is whether a suit for specific performance of a contract for exchange of immovable property is one which is incapable of valuation or one which falls under Section 7 (x), Court-fees Act. Section 7 (x) of the Act provides for suits for specific performance of contracts of several kinds, contract of sale, contract of mortgage, contract of lease and for an award. There is no provision made in that section for a contract of exchange of immovable property. Learned Counsel for the appellant contends that the relief asked for must be taken to be incapable of valuation and that the proper court-fee is that payable under Article 17-B of Schedule 2 of the Act. As against this, the Appeal Examiner seeks to rely on a decision in Kundan Lal v. Anand Sarup A.I.R. 1923 Lah. 456 where it was held that a suit for specific performance of a contract of exchange of immovable property should be treated as being in the nature of a suit for specific performance of a contract of sale and that court-fee should be levied under Section 7 (x) (a) of the Act. It appears to me that a sale plainly involves the payment of money. In an exchange, there is no payment of money. Ordinarily I should be content to follow a decision of a High Court but as the correctness of the view expressed in that decision has been questioned in two well known commentaries on the Court-fees Act and as the question that has come up for consideration appears to be one of general importance, I place this matter for decision by the Honourable the Taxing Judge.
Judgment of High Court
2. Neither Section 7 (x) (a) nor Article 17-B of Schedule 2, Court-fees Act, appears to govern the question. We are not here concerned with a suit for specific performance of a contract of sale, nor can it be said that the subject-matter of the suit is incapable of valuation. Article 1 of Schedule 1 which is the residuary article has to be applied here, as a memorandum of appeal of the nature here under consideration has not otherwise been provided for in the Act.