Kanhiyalal vs Dr. Gopilal Garg

Nigam, J.C.

In Execution Application No. 323 of 1946 arising out of decree, dated 20-3-43 in original suit No. 749 of 1944, Dr. Gopilal Garg v. Shiv Shanker and two others, an order striking out the execution application in default was passed on 1-3-1950. On 28-3-1951 the decree-holder filed an application under S. 151, Civil P.C. requesting that the order, dated 1-3-1950 be set aside and the execution petition be restored to its original number. The learned Sub-Judge, 1st Class, who was seized of the execution case accepted the application and by his order pronounced on 6-10-1951 set aside the order of dismissal and restored the execution application to its original number. Against that order, Kanhaiyalal, judgment-debtor No. 3, has come up in appeal. I have heard the learned counsel for the parties.

The learned counsel for the opposite-party has taken a preliminary objection that the court-fee paid is not sufficient. The suggestion is that court-fee should be paid under Art. 1, Sch. I, Court-fees Act, as Art. 11 of Sch. II has no application to the facts of the case. The learned counsel''s argument is that only those memoranda of appeal when the appeal is not from a decree or an order having the force of a decree, are chargeable under Sch. II, Art. 11, Court-fees Act, and all other memoranda of appeal are chargeable under Sch. I of Art. (sic). The learned counsel for the appellant has referred me to entry at No. (6) in Appendix III in Diwan Chand Obherai Book on Court-fees and Jurisdiction.

This indicates that by notification No. 4344 S.R., dated 6-10-1893, the Governor General was pleased to direct that the court-fee chargeable on appeals from orders under Cl. (c) of S. 244, Civil P.C. (Act 14 of 1882) shall be limited to the amounts chargeable under Art. 11 of the Second Schedule. From Chitaley''s C.P.C., 1950 Edition, Vol. I, page 539 it appears that Cls. (a) and (b) of the old S. 244 and certain words in Cl. (c) have been omitted. It thus appears that the present S. 47 replaces Cl. (c) of the old S. 244. As such, I am of opinion that the court-fee paid on memorandum of appeal from an order under S. 47, Civil P.C. though a decree within the definition of S. 2 (2), Civil P.C. is chargeable under Art. 11 of Sch. II, Court-fees Act.

I, therefore, hold that the court-fee paid is sufficient.

Another objection taken by the learned counsel for the decree-holder is that no appeal lies. The learned counsel points out that the application was under S. 151, C.P.C. and that no appeal lies against such an order under S. 104 or S. 105, Civil P.C. The learned counsel has referred me to -- Keshardeo Chamria Vs. Radha Kissen Chamria and Others, In view of this ruling, I hold that no appeal lies.

I, therefore, dismiss this appeal with costs.