1. This is an appeal against an order of the District Judge of Saran, rejecting a memorandum of appeal on the ground that it was insufficiently stamped. The learned advocate for the plaintiffs-respondents has raised a preliminary objection that no appeal lies against such an order, citing in support 59 Cal 388.1 That however was a case in which the point actually decided was that though the District Judge had rejected a memorandum of appeal on the failure of the appellant to put in deficit court-fees by the time allowed, he had jurisdiction to entertain a fresh application for time under O. 7, R. 13, applying Section 5 of the Limitation Act. In the case before us the District Judge rejected the memorandum of appeal as soon as the deficiency in court-fees was brought to his notice. In AIR 1922 Pat 281,2 following the Allahabad and Madras rulings in 7 All 8873 and 16 Mad 2854 moreover it was held in this Court that an order of dismissal by a District Judge construed as an order rejecting a memorandum of appeal for the appellants' failure to make up a deficit in court-fees is tantamount to a decree within the meaning of the Code of Civil Procedure. An order of rejection passed without giving the appellant any time at all to make up the deficit would seem even more clearly to be a decree, for to such an order it is impossible to apply O. 7, R. 13, the provision on which the decision in 59 Cal 388, was rested. The learned Calcutta Judges did indeed make it clear that in their opinion the definition of “decree” in S. 2, as inclusive of the rejection of a plaint is not extended by S. 107(2), to the rejection of a memorandum of appeal. But the cases from 7 All 887 and 16 Mad 285 were decided under the Code of 1882 which provided that an order rejecting a plaint “is within the definition” of “decree” and this provision is substantially reproduced in the present Code, even though the clause defining “decree” was materially modified in other respects in 1908.
2. It may at first sight seem rather strange that the rejection of a plaint should under S. 2, be deemed to include the rejection of a plaint and yet under O. 7, Rule 13, should not of its own force, preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action; but this is probably to be got over by a reference to the usual words in the defining Section (S. 2), “unless there is anything repugnant in the subject or context.” Be that as it may, the rejection of the memorandum of appeal in the present case was not rejection in any of the circumstances specified in any clause of R. 11 of O. 7, as happened in 59 Cal 388, and R. 13 only refers to rejection on the grounds given in R. 11. If it had been the intention of the Legislature to make the rejection of a memorandum of appeal, in circumstances to which O. 7, Rule 13 does not apply, non-appealable, the rulings under the Code of 1882 would, it may be presumed, have led to a material change as regards the rejection of a plaint in the definition of decree or to a clear provision to that effect somewhere else in the Code of 1908. Prom this point of view, it is impossible to hold that the rejection of the memorandum of appeal in the present case is not a decree (and is therefore not appealable as such) merely because S. 107(2) of the Code, as Suhrawardy J. pointed out, does not purport to give the order passed by an Appellate Court the same effect as an order passed by an original Court of a like nature.
3. The preliminary objection must therefore be overruled. The learned Government pleader, who appears for the appellants, began by endeavouring to show that the memorandum of appeal was not in fact insufficiently stamped. This is however opposed to an express decision of the taxing Judge in 3 Pat LJ 443.5 The learned advocate referred to our recent Full Bench decision in 14 Pat 4,6 where several previous decisions relating to court-fees payable by a mortgagee decree-holder when he appeals or proceeds to execution were approved. But in the present case it was the defendants (the mortgagor and her transferees) that appealed to the lower Appellate Court. It has been pointed out in several cases that the relief that defendants in such suits have to seek from the Appellate Court is different from what a plaintiff-appellant would have to seek. On this being realized, the point was not pressed, and it must be held that the appeal to the District Judge was not in fact sufficiently stamped.
4. It was next contended that the learned District Judge should not have summarily rejected the memorandum of appeal on noticing the deficiency, but ought to have given the appellants some time for filing the necessary stamps. O. 7, R. 11, which deals with the powers of original Courts in such matters has been recently considered by a Full Bench of this Court in 16 Pat 6007 and it has been held that it is the duty of the Court in cases coming under Cl. (c) of R. 11 of O. 7 to require the plaintiff to supply the requisite stamp paper within a time to be fixed by the Court before rejecting the plaint. It has been pointed out on behalf of the respondents that there has been some difference of opinion on the question whether O. 7, R. 11, applies to Courts of appeal.
5. The Bombay High Court in 38 Bom 418 held that Section 107(2) of the CPC, does make O. 7, R. 11 applicable to appeals. This view was not accepted in Madras in 26 IC 33,9 but the learned Judges in this case proceeded on what had been held in 12 All 129,10 regarding High Courts to which O. 7, R. 11(c), is made applicable by O. 49, R. 3. In 59 Cal 388 it seems to have been held that O. 7, R. 11, is applicable to the Court of the District Judge as a Court of Appeal; and the same view is applied in AIR 1922 Pat 281, which has been already referred to. In Allahabad and Calcutta the view also taken seems to be that if an insufficiently stamped memorandum of appeal has in fact been accepted by the Court by inadvertence, time may be given to the appellant to supply the deficiency. Now, this is what happened in the present case, for the memorandum of appeal was presented on 17th November 1936 (the first open day after the Civil Court vacation) and was ordered by the District Judge on that date to be registered; it was rejected on the following day on a stamp report pointing out the deficiency in court-fees. The learned advocate for the respondents has relied on the observation in 3 Pat LJ 74,11 that S. 149 should not be construed and time extended in such a way as to nullify Section 6 of the Court-fees Act. But it was also said in that case that:
When the amount of the court-fee payable is open to doubt, or the amount of the fee cannot be ascertained by the Court till the record is received, or it appears that the appellant has made an honest attempt to comply with the law, the Court may properly receive the appeal and allow time for the deficiency, if any, to be made good.
6. The appellants (as already indicated) were the defendants in the mortgage suit, and they valued their appeal at the figure at which the plaintiffs had valued it in the trial Court. According to the ruling in Rowline's case they ought to have valued it a little higher by including the interest pendente lite, a relatively small matter. There was also a number of rulings which would at first sight suggest that the appellant need not pay court-fees on such interest. It is plain that the learned Judge's who decided 3 Pat LJ 74 would have had no hesitation, on the principles laid down by them, in giving such an appellant, the benefit of Sec. 149 or O. 7, R. 11. The argument for the appellants becomes all the more irresistible when we see that the stamp report about the deficiency was evidently dealt with by the District Judge without the knowledge of the appellants. The learned advocate for the respondents has endeavoured to argue that no consideration ought to be shown to the appellants, because after the rejection of their memorandum of appeal, they applied to the District Judge under Section 151 of the CPC, and when it was pointed out to them that their proper remedy was by an application under O. 41, R. 1, which required the payment of court-fees equal to half the court-fees payable on the appeal, they took no further action. What this however has to do with the propriety of the order of rejection passed by the District Judge on 18th November 1936 it is not very easy to see. The appeal must, in our opinion be allowed, and the order of rejection passed by the lower Appellate Court set aside, the case being sent back to the lower Appellate Court for disposal in accordance with the law.
D.S/R.K
7. Appeal allowed.