James, J.The respondents obtained a decree on the basis of a mortgage bond against Shah Abdul Ghani of Sasaram, which they were about to put into execution, when a suit was instituted by the wife and mother of Abdul Ghanl praying for a declaration that the mortgaged property was wakf property which could not be sold in execution of a decree, and for a declaration that the decree was not binding on the plaintiffs. Before the defendants of the suit had entered on their defence, the plaintiffs prayed for an injunction staying further proceedings in execution. The injunction was refused by the Subordinate Judge on the ground that the suit was purely declaratory and as the plaintiffs had not prayed for any consequential relief, they could not properly apply for an injunction. The plaintiffs appealed to the High Court from this order. While their appeal was pending, the Subordinate Judge called upon the plaintiffs to pay ad valorem court-fee; but he subsequently came to the conclusion that as the injunction had been refused on the ground that the suit was purely declaratory, court-fee could hardly be exacted on the ground that the suit was not (merely declaratory). In their appeal to the High Court against the interlocutory order refusing the injunction, the plaintiffs obtained an interim stay of execution proceedings; but subsequently the decree-holders were permitted to proceed with the execution on their depositing four hundred rupees as security against a possible loss to be suffered by the plaintiffs of this suit from their loss of possession.

2. The miscellaneous appeal in the High Court was ultimately dismissed for default; but in the meantime the deposit had been made; the money had been withdrawn by the plaintiffs, and delivery of possession had been given to the decree-holders. The Subordinate Judge taking up the suit for disposal held that the plaintiffs must fail in consequence of the provisions of Section 42, Specific Relief Act. That section provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying his title to such character or right, and the Court may make therein a declaration that he is so entitled; but it provides that no Court shall make such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The Subordinate Judge found that the plaintiffs could, by their original plaint, have applied for an injunction, or they could later have applied for recovery of possession; but that since they had failed to do so, their suit must be dismissed. The plaintiffs appeal from that decision.

3. The learned Advocate for the appellants argues in the first place that the plaintiffs ought not now to be required to pray for recovery of possession of this property, because at the time when the suit was instituted, their possession had not been disturbed; and the Subordinate Judge in dealing with the case ought to have regard to the state of affairs at the time when the suit was instituted and not to matters which have happened afterwards. He suggests that for a suit of this kind the plaintiffs need pray for nothing more than a mere declaration, relying upon the decision of the Allahabad High Court in Sri Krishna Chandra Vs. Mahabir Prasad and Others . and on that of the Judicial Committee in Partab Singh v. Bhabuti Singh 40 IA 182 : 21 Ind. Cas. 288 : 35 A 487. 16 OC 247 : 17 CWN 1165 : 1913 MWN 785 : 14 MLT 299 : 25 MLJ 492 : 11 ALJ 901 : 18 CLJ 384 : 15 Bom. LR 1001 (PC). In Sri Krishna Chandra Vs. Mahabir Prasad and Others the Allahabad High Court decided oynly that for a plaint which may be considered to be like the plaint in the present case, the court-fee payable was ten rupees, since nothing was asked for in the plaint but a declarat ion. In the course of their judgment, the learned Judges remarked on the view taken up by other High Courts that a prayer for a declaration that a certain decree is null and void against the plaintiffs is really a prayer for obtaining consequential relief by cancellation of the decree, and they admitted that there was something to be said for such a view, because in substance the object of the plaintiff in such a case is to frustrate a decree which has been passed against him and to nullify it. They decide, however, that where nothing but a declaration is asked for in the plaint, a higher court-fee cannot be demanded on the ground that the plaintiff ought to have asked for something else- In Partab Singh v. Bhabuti Singh 40 IA 182 : 21 Ind. Cas. 288 : 35 A 487. 16 OC 247 : 17 CWN 1165 : 1913 MWN 785 : 14 MLT 299 : 25 MLJ 492 : 11 ALJ 901 : 18 CLJ 384 : 15 Bom. LR 1001 (PC) the suit had been instituted praying for declarations that decrees in two pre-emption suits were not binding against the plaintiffs, with a prayer for setting aside the decree in one instance, but with no prayer of that nature regarding the second decree. The Court of the Judicial Commissioner of Oudh had dismissed the suit in appeal on the ground that the failure in the second instance to pray for a consequential relief rendered the whole suit ineffective. The Judicial Committee set aside the decision of the Judicial Commissioners Court decreeing the suit and granting consequential relief in respect of both the previous decrees. This was a suit originally instituted for a declaration with consequential relief; and it could not be properly held to have been barred by the provisions of Section. 42, Specific Relief Act, which only bars suits in which no consequential relief is claimed at all. The suit is clearly one instituted by the plaintiffs for a declaration of their legal character and their right as to property, such as could beentertained under Section. 42, Specific Relief Act, if it were not open to the plaintiffs to claim any other consequential relief. But Section. 42 prohibits the making of such a declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so and the matter which has to be examined in a suit of this nature is whether there is any other relief which the plaintiff should have claimed which he has omitted to claim.

4. As Sir Lawrence Jenkins remarked in Deokali Koer v. Kedar Nath 39 C 704 : 15 Ind. Cas. 427 [LQ/CalHC/1912/355] : 16 CWN 838 in dealing with a case "which bore in its facts some resemblance to the case now before us, the Courts should be astute to see that plaints presented for declaration conform to the terms of Section. 42, Specific Relief Act. In that case the purpose of the plaintiff was to render a decree ineffective; but the only prayer was for a declaration, which was followed after the plaint had been admitted by a prayer for an interlocutory injunction. In the present case the plaintiffs themselves indicated the consequential relief which they had omitted to claim, although they could have claimed it, by a similar prayer for an interlocutory injunction shortly after the admission of the plaint. In Sailendra Nath Bose v. Charu Chandra Bannerji AIR 1929 Cal. 442 : 118 Ind. Cas. 341 [LQ/CalHC/1929/80] : 50 CLJ 257 : Ind. Rul. (1929) Cal 629 it was observed that such a declaration with a relief in the shape of a permanent injunction would be infructuous, because the Court in which the decree is under execution would be in no way bound by a declaration made by a different Court as to the character of the decree under execution before it. The learned Subordinate Judge would have therefore been justified in dismissing the suit on the ground that it was barred by the proviso to Section. 42, Specific Relief Act, owing to the fact that there was no application for a permanent injunction; but by the time the Subordinate Judge came to deliver judgment, possession had been delivered so that an injunction against the executing Court would have had no effect The Subordinate Judge, in view of this fact, held that the plaintiffs ought to have amended their plaint by adding a prayer for recovery of possession. The learned Advocate for the appellant suggests that in coming to his decision, the learned Subordinate Judge should have taken no notice of what might have happened after the institution of the suit; but when the Subordinate Judge held, as he held rightly, that he could not have given the declaration originally prayed for, partly because it would have been utterly infructuous unlessit was attended by a permanent injunction, and partly because the absence of a prayer for such an injunction barred the suit by the provisions of Section. 42, Specific Relief Act, he was entitled also to remark that the absence of a prayer for recovery of possession in the altered circumstances would equally render the suit inadmissible, since if a decree should be obtained, it would be infructuous. The suit was rightly dismissed by the learned Subordinate Judge as barred by the provisions of Section 42, Specific Relief Act.

5 The plaintiffs, in spite of the provisions of Section. 42, Specific Relief Act, would have been entitled to institute a suit of this nature and to succeed on it if they waited until the provisions of Rule. 100, Order XXI, became applicable, but in that event a decision in their favour in the suit would have had the effect of setting aside the decision of the executing Court. When they applied for a temporary injunction the Subordinate Judge should have at once remarked the attempted change in the nature of the suit and he should have required payment of ad valorem court-fee as in a suit for a declaration with consequential relief. The suit in the present instance does not fail because ad valorem court-fee was not paid. It fails because there was no prayer for consequential relief as required by Section. 42, Specific Relief Act; but it is manifest that the prayer for consequential relief was omitted in order to avoid the liability for payment of ad valorem court-fee. It was at this stage, when the attempt was made to change the nature of the suit, that the Subordinate Judge should have demanded ad valorem court-fee, and not at a later stage after he had by his order frustrated the plaintiffs attempt to change the suit into one of a nature on which ad valorem court-fee was payable. If this appeal were dismissed, the effect would be that the suit would stand dismissed and no amendment could be made in the plaint. The plaintiffs may be given an opportunity of amending their plaint, but before this is permitted, they must pay the casts of the defendants of the original suit and of this appeal. If this is done, the plaint amended and court-fee paid on the valuation of the property of which recovery is sought, within three months from the date of receipt of the record by the Subordinate Judge, the plaintiffs may proceed with their suit which otherwise will be dismissed. Let the record be returned to the Subordinate Judge forthwith.

Agarwala, J.

6. I agree.