Dawood Karim Ashrafi And Another v. City Improvement Board

1. This is a reference to a Full Bench in which the question for decision relates to the court-fee payable on an appeal filed under S. 25 of the Rules sanctioned by H.E.H the Nizam for recovery of arrears of rent and ejectment from premises belonging to the City Improvement Board. The order appealed from is embodied in the notice dated 5th Snahrewar 1358 F., calling upon the appellant to vacate House No. 8 and deliver possession of it to Mchtamim Vasul Kirava within fifteen days of the notice, failing which, he was informed, he would be forcibly ejected. The Office raised the objection that the court-fee paid was insufficient and that the appellant should pay court-fee on the basis of value of one year's rental. On 20th Shahrev;ar 1358 F., this application came on for hearing for the purpose of admission before the Division Bench. The Bench passed an order to the effect that Article (4) of the Second Schedule of the Hyderabad Court-fees Act was applicable to this case and the court-fee of Rs. 2/- paid on the memorandum of appeal was adequate, and directed that the appeal be admitted.

2. This order being ex parte was challenged by the Advocate for the respondent and the objection raised by the office was reiterated on the strength of an unreported ruling, of this Court in the case of —‘Amir Seth v. Araish Baida’, No. 75/2 of 1356 F., D/- 12th Azur 1356 F. (A). In that case similar to the one with which we are concerned, it was laid down that the court-fee should be ad valorem computed on the basis of one year's rental.

3. The referring Bench having regard to the provisions of Article (4) of the Second Schedule of the Hyderabad Court-fees Act came to the conclusion that the question of court-fee arising in this appeal required consideration by a higher Bench and it is thus that the present reference has come before us. In order to appreciate the point involved in this reference, it would be useful to set out the relevant Articles of the Hyderabad Court-fees Act on which the learned Advocates appearing for the parties have relied to support their respective contentions.

4. Article (1) of Schedule 1 of the Hyderabad Court-fees Act thereinafter to be referred as the Act) provides that an ad valorem court-fee shall be payable on plaint, written statement, pleading, a set off or counter claim or memorandum of appeal not otherwise provided for in this Act or cross-objection. Article (4) of the Second Schedule of the Act enacts that a fixed fee prescribed for applications or petitions under Article (1) of Schedule I of the Act shall be payable on memorandum of appeal when the appeal is not from a decree or an order having the force of a decree.

5. It is contended on behalf of the appellant that the order appealed from is neither a decree nor an order having the force of a decree, therefore the matter is covered by Article (4) of the Act and the fixed court-fee that has been paid is adequate. In support of this contention, reliance is placed on the definition of ‘decree’ contained in Section 2(2) of the CPC and on — ‘Upadhya Thakur v. Fersidh Singh’, 23 Cal 723, at p. 729 (FB) (B); — ‘Ram Prasad v. Tirloki Nath’, AIR 1938 All 50 (C); — ‘Tawassul Hussain v. Ahmed Husain’, AIR 1944 Oudh 83 (D); — ‘In re Venkataratnam’, AIR 1941 Mad 639 (E) and — ‘Irshad Husain v. Bakhshish Husain’, AIR 1946 Oudh 254 (F). The learned Advocate for the respondent assented to the proposition that the order appealed from was not a decree as was contended by the learned Advocate for the appellant but he urged that it amounted to an order having the force of a decree and was therefore covered by Article (1) of the First Schedule of the Act prescribing an ad valorem court-fee.

6. The determination of the question thus depends upon the meaning to be attached to the expression “order having the force of a decree” ‘Decree’ has been defined in Section 2(2) of the CPC as meaning:

“The formal expression of an adjudication which, so far as it regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit.”

7. The definition then goes on to say that:

“it shall be deemed to include the rejection of a plaint and the determination of any question within S. 47 or S. 144 but shall not include—

(a) any adjudication from which an appeal lies as an appeal from an order.

(b) any order of dismissal for default”.

8. It is obvious from the definition that in order that a decision of a Court may be a decree, there must be an adjudication in a suit conclusively determining the controversial right of the parties and a formal expression of it. ‘Order’ is defined in Section 2(14) of the CPC to mean the formal expression of any decision of a Court which is not a decree. Rejection of a plaint or determination of any question falling under S. 47 or 144, because they do not fall within the ambit of the main part of the definition, would have amounted to mere orders, but the Legislature gave them the force of a decree by including them in the aforesaid definition. It would thus appear that every order by itself does not fulfil the essential elements of a decree. In order to make the order have the force of a decree, the law must expressly say so. As a pertinent illustration, a reference may be made to sub-r. (3) of O. 21, R. 50. That sub-rule provides that where the liability of any person has been tried and determined under sub-r. (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. In our opinion, therefore, an order that is given the force of a decree by a Statute is an order that ‘proprio vigore’ stands as a decree.

9. In a great measure, we are reinforced in our view by some of the authorities cited by the learned Advocate for the appellant. In — ‘AIR 1938 All 50 (C)’, an appeal was filed by a judgment-debtor under Section 5(1) of the Agriculturists' Relief Act. He paid the court-fee of eight annas under Sch. II, Article (11), Indian Court-fee Act corresponding to Article (4) of the Hyderabad Act. Section 5(1) of the U.P Agriculturists' Relief Act entitled the judgment-debtor to apply to the Court passing the decree for money, that the same be converted into a decree for payment by instalments. The section further provided that, if the Court refuses to grant instalments or grants a number or period of instalments which the judgment-debtor considers inadequate, the order of the Court shall be appealable to the Court to which the Court passing the order is immediately subordinate. It was contended that the order in question had the force of a decree and therefore ad valorem court-fee was payable. It was held that an order under Section 5(1) of the U.P Agriculturists' Relief Act has not by itself the force of a decree. To have the force of a decree, an order must possess all the characteristics of a decree. It was further held that the word ‘decree’ has not been defined in the Court-fees Act or in the General Clauses Act, and it was safe to assume that the word has been used in the Court-fees Act in the sense in which it is used in the Code of Civil Procedure. This view has been followed by the Oudh Chief Court in — ‘AIR 1944 Oudh 83 (D)’ and —‘AIR 1946 Oudh 254 (F)’. In the ‘former case, it was laid down that in an appeal under Section 30 of the Workmen's Compensation Act, against the order of the Commissioner awarding compensation under the Act, the court-fee payable is that fixed by Article (11) of Sch. II, Court-fees Act for such an order has not the force of a decree.

10. In the latter case, an order was passed under Section 20 of the U.P Encumbered Estates Act quashing all proceedings under that Act. An appeal was preferred by one of the creditors who had obtained a decree under S. 14 of the Act. A fixed court-fee was paid on the memorandum of appeal under Article (11). Overruling the contention as to the insufficiency of the court-fee paid, it was held that there was no provision in the Encumbered Estates Act in which the order in question had the force of a decree. It was not the formal expression of an adjudication as to the rights of the parties nor was it one capable of execution. The order was, therefore, one which was covered by Sch. II, Article (11), Court-fees Act and the court-fee paid on the memorandum of appeal was sufficient. In — ‘AIR 1941 Mad 639 (E)’, it was held that Article (11), Sch. II, Court-fees Act applies to cases where the statute provides that an order shall be subject to an appeal as if it were a decree.

11. We are, therefore, of the opinion that the proper Article of the Court-fees Act to apply to this appeal is Article (4), Sch. II of the Act, and that the case of —‘Amir Seth v. Araish Baida’, (A) was not correctly decided. The appeal will be pasted in due course before the Division Bench dealing with civil appeals.

A./K.S.B

12. Order accordingly.