Iftikhar Ahmad and Others vs Bharat Kumar and Another

Dave, J.—This is an application by the appellant Htikhar Ahmad and others under Order 47, Rule 1 of the CPC for review of our order dated 4th of October 1955 whereby they were directed to pay ad valorem court-fee within fifteen days time.

Learned counsel for the petitioners has urged that his clients do not contest the amount of the decree, but they are simply contesting their personal liability to pay the decretal amount, that the appeal is therefore governed by Schedule II, Article 17 and not by Schedule I, Article 1 of the Court-fees Act.

We have given due consideration to the above noted argument. It may be observed that in the first instance, the review application is incompetent because it is not covered by Order 47, Rule 1. An application under this rule can be made only if there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or if there is some other sufficient reason.

It is obvious that the petitioner has not alleged any discovery of any new and important matter or evidence. All that he wants to say is that the view which we have taken is incorrect because a different view has been taken by some other High Courts. It may be observed that simply because a different view on a question of law is taken by another High Court, it cannot be said that it is a mistake apparent on the face of the record.

Still we have looked into the cases relied upon by the petitioner in order to satisfy ourselves if the view taken by us is correct. The first case relied upon by the petitioner is Radha Kishan v. Mehtab Mian AIR. 1925 Lah 496 (A).

In that case it was held that an appeal which does not attack the decree as a whole but only the manner in which the trial Court''s decree is to be enforced falls under Clause (6) of Article 17 of the Court-fees Act and a court-fee stamp of Rs. 10/- is sufficient. In that case, the trial Court had decreed the suit but added a direction that a receiver should be appointed in respect of the partnership property which was to be brought to the market for sale.

The plaintiff was ordered to supply the necessary funds for bringing the timber, which was his personal property, to the market. The plaintiff went in appeal to the District Judge to have this direction removed. The District Judge held that the court-fee stamp of Rs. 10/- paid by the plaintiff on the memorandum of appeal was insufficient. It was in those circumstances that the High Court held that the appellant was not attacking the decree but only the manner in which it was to be enforced and for that reason Article 17, Clause 6 was held applicable.

In the present case, it appears that there was a decree for the sale of mortgaged property. The mortgaged property was thereafter sold, but since file sale-proceeds were found insufficient to satisfy the decretal amount, the decree-holder applied for personal decree against the present appellants. The learned District Judge has passed a personal decree under Order 34, Rule 6 and it is against that decree that the present appeal has been filed.

It cannot be said that the petitioners simply challenge the manner of the enforcement of the decree. The previous decree was only for the sale of the mortgaged property. It is now that a personal decree under Order 34, Rule 6 has been passed by the District Judge.

The appellants challenge their personal liability to pay up the decretal amount. The Court will have to look into the question whether there was a personal covenant by the petitioners to pay up the amount. The Court will, therefore, have to decide a substantive question of law and it cannot be said, under the circumstances, that the applicants are simply challenging the manner in which the decree is to be enforced.

The question of the manner of execution will come up when this personal decree is put into execution. A similar question had arisen in the case of Lakhi Narain Jagdeo v. Krittibas Das 19 Ind Ca 971.

In that case, it was an order u/s 90 of the Transfer of Property Act against which the appeal was filed. Order 34, Rule 6 of the CPC now corresponds to old Section 90 of the Transfer of Property Act. It was held that an appeal from such an order was an appeal from a decree.

It was observed that

"Section 90 describes the order as a decree, the order lias all the characteristics of a decree, as defined in the Code of Civil Procedure; it determines the personal liability of the mortgagor to pay to the mortgagee, the amount of the judgment-debt, not realised by the sale of the mortgaged properties the order pre-supposes an adjudication by the Court, that such balance is legally, recoverable from the defendants, otherwise than out of the property sold. It is consequently incontrovertible, that the order is a decree; an appeal preferred against the order must be treated as an appeal from original decree and Court-fees levied ad valorem upon the memorandum of appeal."

The same view was again reiterated by the Calcutta High Court in Kartikchandra Ray v. Asharam Agarwala ILR Cal 568 .

It may be pointed out that Order 34, Rule 6 now clearly provides for a decree and, therefore, there is all the more reason to say that it cannot be taken to be a mere order regarding the manner of execution in a previous decree. In the case of Tajammal Husain Khan v. Muhammad Husain Khan AIR 1916 All 337 (D) and Bindhiachal Rai and Another Vs. Sita Ram Misir and Another, , the learned Judges of the Allahabad High Court have also taken the view that an appeal from a decree passed under Order 34. Rule 6 of the CPC is chargeable with ad valorem court-fee. The same view has been taken by the Oudh Chief Court in Wasi Ali v. Jang Bahadur Singh AIR 1915 Oudh 122 (F).

Learned counsel for the petitioner has not referred to a single case of any High Court in which! a contrary opinion might have been held in an appeal from . a decree under Order 34, Rule 6.

He has referred to Madho Ray and Others Vs. Mt. Bibi Mahbuwan Nisa and Others, ; Jagannath Ravji Kondkar Vs. Laxmibai Anant Laxman Kondkar, ; Sobha Ram Chela Ram v. Finn Bhainsiram Janjiram. AIR 1937 Pesh 89 (I); AIR 1940 183 (Oudh) and Balavenkatrama Chettiar and Others Vs. Maruthamuthu Chetty and Another, , but we do not propose to discuss these cases in detail because in none of them there was a decree under Order 34, Rule 6 or u/s 90 of the old Transfer of Property Act. The view which we have taken is therefore correct and We see no reason to change it.

The application for review is therefore dismissed. We allow time up to 19-12-55 to make good the Court-fee. No further time will be allowed.