This is a reference by the Taxing Officer under sec. 5 of the Court Fees Act.
The question for determination is what is the Court-fee payable on an appeal from an order under sec. 144 of the Civil Procedure Code.
Cl. 6 of the Notification of the Government of India, No. 4650, dated the 10th September, 1889, prescribes a Court-fee of two rupees on appeals from orders under cl. (c) of sec. 244 of the Code of Civil Procedure (Act XIV of 1882). That notification would, under the provisions of sec. 157, apply to orders under sec. 47(I) of the present Civil Procedure Code which corresponds to sec. 224, cl. (c) of the old Code. The question, therefore, is whether an order under sec. 144 is an order which decides a question falling under sec. 47(I) of the present Code.
Under sec. 583 of the old Code an application for restitution was treated as an application for execution of the Appellate decree, and it was expressly provided that the Court shall proceed to execute the decree passed on appeal according to the rules for execution of decrees in suits. It was accordingly held in Gangadhar Marwari v. Lachman Singh that an order under sec. 583 fell within the provisions of sec. 244(c), and therefore cl. (6) of the notification applied.
Under the old Code, there was divergence of judicial opinion on the point whether a separate suit for restitution was or was not barred. That question has now been set at rest by sec. 144(2) of the present Code.
It is true sec. 144 of the present Code omits the provisions that the Court is to proceed according to the rules prescribed for the execution of decrees in suits, but it expressly lays down that no suit shall be instituted for the purpose of claiming any restitution which can be obtained by application under the section. The Court in making restitution has to execute the decree of reversal (which necessarily carries with it the right to restitution even though the decree may be silent as to such restitution) in order to give effect to the reversal of the decree. That being so, an order under sec. 144 comes under sec. 47(1) and cl. 6 of the notification applies to such an order.
I think, therefore, that the Taxing Officer is right in holding that a Court-fee of two rupees is chargeable on appeals from orders under sec. 144 of the Code.
N.G