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Smart Summary

Factual and Procedural Background

A suit was instituted by the proprietors of Mahal Bisthazari (district of Monghyr) seeking, among other reliefs, to set aside a revenue sale of the Mahal, to recover possession from auction-purchasers, and to recover mesne profits both for the period up to the date of the suit and for future mesne profits up to delivery of possession. The suit was ultimately decreed by the Privy Council.

Two applications for delivery of possession were made (one by the Maharaja of Gidhour and another by Maharaj Kumar Bageshwari Prosad Singh and others). Possession was delivered to those applicants for the properties in which they were interested. Thereafter both the Maharaja and the Maharaj Kumar separately applied for ascertainment of future mesne profits from the date of suit to the date of delivery of possession; in those applications they claimed substantial sums and (according to the opinion) they paid ad valorem court-fee on the amounts they claimed. The Subordinate Judge, after enquiry, awarded mesne profits: approximately Rs. 41,803 to the Maharaja and Rs. 57,452 to the Maharaj Kumar.

Four appeals were then preferred against those decrees. Each memorandum of appeal was stamped with a court-fee stamp of Rs. 4 only. The High Court pronounced judgment on those appeals on 13 August 1931 (dismissing one appeal entirely and allowing the others partially). When the decree was to be prepared, a court officer discovered that the memoranda of appeal were insufficiently stamped and referred the matter to the Registrar.

The Registrar, acting in a dual capacity, concluded that the proper court-fee on each memorandum of appeal was ad valorem (calculated on the value of the subject-matter in dispute) and called upon the parties to pay the deficit court-fee, directing that the decree should not be drawn up until payment. The parties disputed (a) the jurisdiction of the Registrar (and of the Taxing Officer) to take that step at this stage and (b) that the memoranda had been properly stamped. The Registrar persisted and, as the parties refused to pay, the matter was referred to the Court for final orders.

Legal Issues Presented

  1. Whether the court-fee payable on a memorandum of appeal presented to the High Court against a decree awarding ascertainment of mesne profits is ad valorem (calculated on the value of the subject-matter in dispute) or a fixed fee (Rs. 4) as contended by some authorities.
  2. Whether the Registrar (or Taxing Officer) may, after the High Court has pronounced judgment, call upon parties to pay any deficit in court-fees and restrain preparation of the decree until such deficit is paid (i.e., whether the court may stop decree preparation at that stage or is functus officio).

Arguments of the Parties

Appellants' Arguments

  • The memorandum of appeal in each case was properly stamped with a Rs. 4 stamp and therefore no additional ad valorem fee was payable.
  • The Court, having pronounced judgment, was functus officio; reliance was placed on section 33 and Order XX, rules 6 and 7 of the Code of Civil Procedure to argue that the decree must follow and the Court could not direct stoppage of decree preparation or call for payment of any deficit at that stage.
  • Some appellants contested the jurisdiction of the Registrar (and of the Taxing Officer) to call for additional court-fee at that stage.

Registrar / Taxing Officer's Position

  • The court-fee payable on each memorandum of appeal was ad valorem upon the value of the subject-matter in dispute (i.e., the amount claimed by each appellant), and the memoranda were insufficiently stamped.
  • Accordingly, the Registrar called upon the parties to pay the deficit court-fee and directed that the decree not be drawn up until payment was made.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sheodhin Singh v. Norangi Lal Ram Cited as authority (before the Court) that the court-fee payable on a memorandum of appeal in a similar fact-situation was a fixed sum of Rs. 4 (decision of the Taxing Judge). The Court examined and disagreed with the Taxing Judge's reliance on this decision because the earlier decision was based on a Full Bench ruling that related to petitions for ascertainment before the trial court, not to memoranda of appeal presented to the High Court.
Ramgulam Sahu v. Chintaman Singh (Full Bench) Held that an application for ascertainment of mesne profits made to the trial court did not require ad valorem stamp; it was an application and fell under Schedule 2 (i.e., fixed fee). The Court distinguished this Full Bench decision as addressing the petition to the trial court rather than the memorandum of appeal to the High Court; thus it did not determine the court-fee payable on a memorandum of appeal.
Nand Kumar Singh v. Bilas Ram Marwari Held that a memorandum of appeal must be stamped ad valorem in accordance with Schedule I, Article 1 of the Court-fees Act. The Court relied on this decision to support its conclusion that the memoranda of appeal in the present cases ought to have been stamped ad valorem.
Radhiha Raman Prosad Singh v. Janki Kueri (Full Bench) Held that when the High Court dismisses an appeal, it ceases to have seisin of the case and is powerless to call upon the respondent to pay any deficiency due in respect of lower-court fees or to restrain execution of the decree. The Court relied on this Full Bench authority to conclude that after judgment is pronounced the High Court lacks power to stop preparation of the decree or to call for payment of deficit court-fees at that stage.
Jatra Mohan Sen v. Secretary of State for India Decision of the Calcutta High Court taking the same view as in Radhiha Raman (i.e., High Court powerless to call for deficiency after dismissal and to restrain execution). The Court cited this case (and others) to reinforce the conclusion that the High Court cannot stop decree preparation or restrain execution for the purpose of collecting a deficit stamp fee after judgment has been pronounced.
Shanghai Life Insurance Co. v. Mrs. Helen Constance Brown Listed as another case aligning with the view that the High Court lacks such post-judgment power. Cited in support of the conclusion on the Court's lack of jurisdiction to stop decree preparation after judgment.
Abdullah v. Secretary of State for India Also listed among authorities agreeing with the principle that the High Court cannot, after pronouncement of judgment, call for payment of lower-court fee deficiencies to restrain execution. Used as corroborative authority for the Court's conclusion regarding post-judgment limits on the High Court's powers.

Court's Reasoning and Analysis

The Court proceeded in two analytic stages: (A) the proper characterisation of the court-fee payable on the memorandum of appeal, and (B) the extent of the Court's power to demand payment of a deficit and to restrain preparation of the decree after judgment has been pronounced.

A. Characterisation of the court-fee on the memorandum of appeal

  1. The Court observed that earlier decisions (notably the Full Bench in Ramgulam Sahu) addressed the court-fee payable on an application or petition for ascertainment of mesne profits before the trial court and held that such petitions required a fixed fee under Schedule 2 rather than an ad valorem fee.
  2. However, the Court emphasised that the document now before it is not the petition to the trial court but the memorandum of appeal presented to the High Court. The relevant statutory provision is section 4 of the Court-fees Act which requires that a memorandum of appeal be accompanied by a fee not less than that indicated by the schedules to the Act.
  3. Schedule I, Article 1 of the Court-fees Act explicitly prescribes that a memorandum of appeal is to be stamped with a court-fee calculated on the amount or value of the subject-matter in dispute in the appeal (i.e., ad valorem).
  4. Applying that statutory prescription, and having regard to precedent in Nand Kumar Singh v. Bilas Ram Marwari, the Court concluded that the memoranda of appeal in the four cases should have been stamped ad valorem (on the amounts claimed in each appeal), and that the Registrar's view to that effect was correct.
  5. The Court disagreed with the Taxing Judge's decision in Sheodhin Singh v. Norangi Lal Ram to the extent that it treated the memorandum of appeal as attracting only a fixed Rs. 4 fee; the Court explained that Sheodhin's reliance upon the Full Bench in Ramgulam Sahu was misplaced because that Full Bench decision concerned petitions to the lower court and not memoranda of appeal to the High Court.

B. Power to call for deficit fee and to restrain decree preparation after judgment

  1. The appellants argued that once judgment had been pronounced, the Court was functus officio and could not direct stoppage of decree preparation or call for additional court-fee. They relied on section 33 and Order XX, rules 6 and 7 of the Code of Civil Procedure.
  2. The Court agreed with the appellants on the fundamental principle: after judgment has been pronounced, signed and sealed, the Court has no power to alter it, and the decree must be prepared in accordance with the judgment.
  3. The Court examined section 28 of the Court-fees Act and concluded that it does not empower the Court to call upon parties to pay a deficit court-fee after judgment has been pronounced; rather, section 28 serves to validate certain acts which would otherwise be invalid if documents were not properly stamped.
  4. The Court relied on its Full Bench decision in Radhiha Raman Prosad Singh v. Janki Kueri (and supporting Calcutta High Court authorities) that when the High Court dismisses an appeal, it ceases to have seisin of the case and lacks jurisdiction to call upon the respondent to pay deficiencies in lower-court fees or to restrain the respondent from executing the decree.
  5. Applying these authorities and principles, the Court held that it had no power to stop preparation of the decree on the ground that the memorandum of appeal had been insufficiently stamped; consequently, the decree must be prepared in accordance with the judgment already pronounced.

Holding and Implications

Core Ruling: Reference rejected.

More specifically, the Court reached these conclusions:

  • The Court held that the correct legal view is that a memorandum of appeal presented to the High Court must be stamped ad valorem in accordance with Schedule I, Article 1 of the Court-fees Act; thus, the Registrar was correct in concluding that the memoranda should have borne ad valorem stamps corresponding to the amount in dispute.
  • Nevertheless, the Court held that it had no power, after judgment had been pronounced and the Court had become functus officio, to call upon the parties to pay any deficit in court-fees or to stop the preparation of the decree until such deficit was paid; section 28 of the Court-fees Act does not confer such power at that stage.
  • Accordingly, the Court directed that the decree be prepared in accordance with the judgment pronounced on 13 August 1931 and refused the Registrar's direction to withhold drawing up the decree pending payment of any deficit.

Direct effect on the parties: The Court affirmed the legal position on the character of the stamp required for memoranda of appeal (ad valorem), but ordered that the decree be drawn up now in consequence of the earlier judgment; the reference by the Registrar to withhold decree preparation was rejected.

Reference rejected.

    Kedar Nath Goenka v. Maharaja Chandra Mauleshwar Prasad Singh Bahadur

    Kulwant Sahay and Scroope, JJ.:— This matter comes before us on a reference by the Registrar under the following circumstances: It appears that a suit was instituted by the proprietors of Mahal Bisthazari in the district of Monghyr and the reliefs asked for in the plaint were to set aside the revenue sale of the Mahal, to recover possession from the auction-purchasers at the revenue sale and for recovery of mesne profits for the period up to the date of suit and also for future mesne profits up to the date of delivery of possession. This suit was ultimately decreed by the Privy Council. Two applications were then made for delivery of possession, one by the Maharaja of Gidhour and the other by Maharaj Kumar Babu Bageshwari Prosad Singh and others. Possession was delivered to them over the properties in which they were interested out of the various villages comprised within Mahal Bisthazari. Thereafter two separate applications were made by the Maharaja of Gidhour and Maharaj Kumar Babu Bageshwari Prosad Singh for ascertainment of future mesne profits from the date of suit up to the date of delivery of possession. The Maharaja in his application claimed a sum of Rs. 1,01,591 and odd and Maharaj Kumar Bageshwari Prosad Singh claimed a sum of Rs. 3,85,000 and odd as mesne profits. Upon their applications for ascertainment of mesne profits they paid ad valorem court-fee calculated on the amount claimed by them as mesne profits. The Subordinate Judge after a prolonged enquiry made decrees for mesne profits, awarding Rs. 41,803 and odd to the Maharaja and Rs. 57,452 and odd to Kumar Bageshwari Prosad Singh. Four appeals were preferred against the decrees made by the Subordinate Judge. The judgment-debtor Babu Kedar Nath Goenka filed appeal no. 28 of 1928 against the Maharaja valuing his appeal at the sum of Rs. 41,803 and odd, namely, the amount decreed against him. The Maharaja filed appeal no. 33 of 1928 against Babu Kedar Nath Goenka claiming Rs. 52,000 and odd as the amount to which he was entitled over and above the amount decreed in his favour by the Subordinate Judge. Babu Kedar Nath Goenka preferred appeal no. 29 of 1928 against Maharaj Kumar Babu Bageshwari Prosad Singh valuing his appeal at Rs. 57,452, that is, the entire amount decreed against him in favour of the Maharaj Kumar, and Maharaj Kumar. Babu Bageshwari Prosad Singh preferred appeal no. 32 of 1928 claiming a further sum of Rs. 54,000 over and above the amount decreed in his favour by the Subordinate Judge. The memorandum of appeal in each one of these four appeals was stamped with a court-fee stamp of Rs. 4 only. The appeals came on for hearing in due course and we pronounced our judgment in the appeals on the 13th August, 1931. We dismissed appeal no. 33 entirely and we allowed the other three appeals partially. When the stage came for the preparation of the decree, the officer of the Court in charge of the preparation of the decree discovered that the memorandum of appeal in each case had been insufficiently stamped. He made a reference to the Registrar and the Registrar was of opinion that the court-fee payable on the memorandum of appeal was ad valorem upon the value of the subject-matter in dispute in the appeal. He thereupon called upon the parties to pay the deficit court-fee and directed that until the deficit court-fee was paid, the decree in the four appeals shall not be drawn up. The parties appeared and contested the jurisdiction of the Registrar to call upon them, to pay additional court-fee at this, stage. They further contended that the memorandum of appeal in each case had been properly stamped.

    The Registrar has dealt with this case in a dual capacity. As Registrar he has refused to draw up the decree so long as the deficit court-fee was not paid. As Taxing Officer purporting to act under section 5 of the Court-fees Act he has held that the proper court-fee payable on the memorandum of appeal in each case was ad valorem upon the value of the claim of the appellants in each case. As the parties refused to pay the court-fee the matter has now been referred to us for final orders.

    Mr. Hasan Imam has questioned the jurisdiction of the Taxing Officer under section 5 of the Court-fees Act to pass any order at this stage of the appeal. It is, however, not necessary to consider the question as regards the jurisdiction of the Registrar as a Taxing Officer because in any event the matter has been referred to us and under section 28 of the Court-fees Act we have undoubtedly the power to determine whether the court-fee paid on the memorandum of appeal was sufficient.

    It is next contended that the court-fee paid on the memorandum of appeal was sufficient, and reliance is placed upon a decision of this Court in Sheodhin Singh v. Norangi Lal Ram. The facts of that case appear to be precisely similar to the facts of the present case. There also an application had been made for ascertainment of mesne profits. Mesne profits had been ascertained by the court below and an appeal had been preferred to the High Court disputing the amount ascertained by the court below. It was held by the Taxing Judge to whom the matter had been referred by the Taxing Officer under section 5 of the Court-fees Act, that the court-fee payable on the memorandum of appeal was not ad valorem but a fixed sum of Rs. 4. This decision was based on a Full Bench decision of this Court in Ramgulam Sahu v. Chintaman Singh* where the question raised was whether the application for ascertainment of mesne profits made to the trial court was to be stamped ad valorem and it was held that such an application did not require to be stamped ad valorem, the reasonieing that it was merely an application and ought to be stamped under Schedule 2 of the Court-fees Act. The Full Bench decision, therefore, did not decide the question of the court-fee payable on a memorandum of appeal presented against a decree made by the lower court on an application for ascertainment of mesne profits. The decision of the Taxing Judge was based on the decision of the Full Bench on a question of the court-fee payable on a petition for ascertainment of mesne profits and not on the question as regards the court-fee payable on the memorandum of appeal. I find myself unable to agree with the view taken by the Taxing Judge in Sheodhin's case. Under section 4 of the Court-fees Act the document which has to be considered is not the petition for ascertainment of mesne profits but the memorandum of appeal. section 4 of the Court-fees Act provides that a document like the one now before us, namely, a memorandum of appeal, shall not be received by the High Court unless in respect of it there be paid a fee of an amount not less than that indicated by the schedules attached to the Act. Schedule I, Article 1 of the Court-fees Act prescribes that a memorandum of appeal is to be stamped with a court-fee stamp calculated on the amount or value of the subject-matter in dispute in the appeal. The amount or value of the subject-matter in dispute in the four appeals was the amount claimed by the appellant in each case and, therefore, the memorandum of appeal in each case ought to have been stamped ad valorem. This was the view taken by this Court in Nand Kumar Singh v. Bilas Ram Marwari. It is true that the decision arrived at in this case was doubted in the Full Bench decision of this Court in Ram Golam's case referred to above; but that was only with reference to the court-fee stamp payable on the petition for ascertainment of mesne profits filed in the lower court and not with reference to the court-fee payable on the memorandum of appeal. We are, therefore, of opinion that the view taken by the Registrar that the memorandum of appeal in each case ought to have been stamped ad valorem is the correct view.

    The next question that arises is what orders we should pass. It is contended by the learned Advocate for the appellants in each case that the Court having pronounced judgment is now functus officio and no order can be passed directing the stoppage of the preparation of the decree or calling upon the parties to pay the deficit court-fee. Reference is made to section 33 and Order XX, rules 6 and 7, of the Code of Civil Procedure and it is contended that a judgment having been pronounced, the decree must follow and the Court is unable to direct that the preparation of the decree be stopped until the payment of the deficit court-fee. In our opinion this contention is well-founded. After the judgment has been pronounced and it has been signed and sealed, no power is left in the Court to alter it or add to it or subtract anything from it; and the judgment having been pronounced a decree must be prepared in accordance with it. section 28 of the Court-fees Act, in our opinion, does not empower the Court to call upon the parties to pay the deficit court-fee after judgment has been pronounced. It only provides for validating certain acts which would be invalid if a certain document was not properly stamped. We are fortified in the view we take by a Full Bench decision of our own Court in Radhiha Raman Prosad Singh v. Janki Kueri where it was held that when the High Court dismisses an appeal for whatever cause, it ceases to have seisin of the appeal or case and is powerless to call upon the respondent to pay any deficiency due by him in respect of court-fees payable in the lower court and consequently has no jurisdiction in such circumstances to restrain the respondent from executing the decree obtained by him. The same view was taken in the Calcutta High Court in Jatra Mohan Sen v. Secretary of State for India. See also Shanghai Life Insurance Co. v. Mrs. Helen Constance Brown and Abdullah v. Secretary of State for India. It is, therefore, clear that we have no power to stop the preparation of the decree. We would, therefore, direct that decree be prepared in accordance with the judgment pronounced by us.

    Reference rejected.

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    Comments

    Kedar Nath Goenka v. Maharaja Chandra Mauleshwar Prasad Singh Bahadur
    (Mar 10, 1932)