Jagdish Pratap Bahadur Singh And Others v. Raj Kumar Udai Pratap Bahadur Singh And Others

Allsop, Ganga Nath and Ismail, JJ.:— The question before us is whether the court-fees on a memorandum of appeal should or should not be paid ad valorem. The appeal is one against a decree passed by the Special Judge under S. 14 of the United Provinces Encumbered Estates Act. Court-fees in this Court are paid under S. 4 of the Court Fees Act which says that

“No document of any of the kinds specified in the first or second Schedule to this Act annexed, as chargeable with fees, shall be filed ………………or shall be received ………..by a High Court; unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document.”

There can be no doubt that the document with which we are dealing is a memorandum of appeal. The question then is whether it does or does not come within Art. 1 of Sch. 1 of the Act. That Article says that court-fees in certain amounts shall be paid ad valorem on a memorandum of appeal (not otherwise provided for in the Act) presented to any Civil or Revenue Court except those mentioned in S. 3, S. 3 of the Act deals with High Courts acting on their original side and does not affect the question of court-fees payable on the present memorandum of appeal. It is obvious that the court-fee must be paid ad valorem on this memorandum of appeal unless it is otherwise provided for in the Act. The only other Articles under which it is possible to argue that this memorandum of appeal might be provided for are Arts, 11 and 17 of Sch. 2. Art. 11 cannot apply because it provides for court-fees on memorandum of appeal when the appeal is not from a decree or an order having the force of a decree and in S. 14 of the United Provinces Encumbered Estates Act it is specifically stated that the Special judge shall pass a simple money decree for the amount which he finds due to the claimant and that such decree shall be deemed to be a decree by a Civil Court of competent jurisdiction.

It has been suggested that Art. 17 of Sch. 2 applies because the suit if it can be called a suit in the Court of the Special Judge was one to obtain only a declaration that a certain amount of money was due. We do not think that there is any force in this argument. If the proceeding in the Court of the Special Judge is not a suit then Art. 17 of Sch. 2 cannot apply because that applies to a memorandum of appeal in certain suits. On the other hand, if the proceedings in the Court of the Special Judge is deemed to be a suit then it must be a suit on the basis of a claim made by the debtor in the written statement for which provision is made in S. 9 of the Act and is a suit for a definite amount of money claimed by the creditor. It cannot be said that this is a suit to obtain a declaration only. Provision is made that the money shall be recovered in the particular ways specified in the Act.

It has been argued that the decree of the Special Judge cannot be executed in the ordinary way under the Code of Civil Procedure. It does not appear to us that that makes any difference. There are other decrees of a Civil Court which cannot be executed in the ordinary way but must be executed by Collectors under the provisions of the Code of Civil Procedure. The fact that they are executable in that way does not make them any less decrees of a Civil Court.

The third argument is that the memorandum comes under Art, 17 of Sch. 2 because it arises out of a suit where it is not possible to estimate at a money value the subject-matter in dispute. It again seems to us that there is no force in this argument. We have already explained that this Article would not apply if the proceeding in the Court of the Special Judge were not a suit. We have also pointed out that if it were a suit it would be a suit for the recovery of a specific sum of money claimed by the creditor. It is not, therefore, possible to hold that the money value of the suit is not capable of estimation. It is so capable to the nearest anna and pie because the claimant is claiming a definite sum.

We are satisfied that this memorandum of appeal cannot come under the descriptions in Arts. 11 or 17 of Sch. 2 of the Court Fees Act and therefore it must come under the description in Art. 1 of Sch. 1 of the Act. The court-fee is consequently payable ad valorem.

It has been suggested that this will lead to great hardship to landlords who have come in under the provisions of the Encumbered Estates Act. That is a matter with which we are not concerned. There is a provision in S. 35 of the Court Fees Act that the Local Government may remit or reduce the fees chargeable under the Act. The matter is entirely one for the Local Government and not one with which we are concerned. Our decision is that the court-fees payable on the memorandum of appeal are payable ad valorem under the provisions of Art. 1 of Sch. 1 of the Act.

Ordered accordingly.