Kedar Nath Goenka vs Chandra Mauleshwar Prasad Singh

This matter comes before us on a reference by the Registrar under the following circumstances: It appears that a suit was instituted by the proprietor of Mahal Bistahazari in the District of Monghyr and the reliefs asked for in the plaint were to set aside the revenue sale of the mahal, to recover possession from the auction-purchasers at the revenue sale and for recovery of mesne profits for the period up to the date of suit and also for futue mesne profits up to the date of delivery of possession. This suit was ultimately decreed by the Privy Council.

Two applications were then made for delivery of possession, one by the Maharaja of Gidhour and the other by Maharaj Kumar Babu Bageshwari Prosad Singh and others. Possession was delivered to them over the properties in which they were interested out of the various villages comprised within Mahal Bisthazari. Thereafter two separate applications were made by the Maharaja of Gidhour and Maharaj Kumar Babu Bageshwari Prosad Singh for ascertainment of future mesne profits from the date of suit up to the date of delivery of possession.. The Maharaja in his application claimed a sum of Rs. 1,01,591, odd and Maharaj Kumar Bageshwari Prosad Singh claimed a sum of Rupees 3,85,000 odd as mesne profits. Upon their applications for ascertainment of mesne profits they paid ad valorem court-fee calculated on the amount claimed by them as mesne profits.

The Subordinate Judge, after a prolonged inquiry, made decrees for mesne profits, awarding Rs. 41,803 odd to the Maharaja and Rs. 57,452 odd to Kumar Bageshwari Prosad Singh. Four appeals were preferred against the decrees made by the Subordinate Judge. The judgment-debtor Babu Kedar Nath Goenka filed Appeal No. 28 of 1928 against the Maharaja valuing his appeal at the sum of Rupees 41,803 odd, namely the amount decreed against him. The Maharaja filed Appeal No. 33 of 1928 against Babu Kedar Nath Goenka claiming Rs. 52,000 odd as the amount to which he was entitled to over and above the amount decreed in his favour by the Subordinate Judge. Babu Kedar Nath Goenka preferred Appeal No. 29 of 1928 against Maharaja Kumar Babu Bageshwari Prosad Singh valuing his appeal at Rs. 57,452, that is, the entire amount decreed against him in favour of the Maharaj Kumar, and Maharaj Kumar Babu Bageshwari Prosad Singh preferred Appeal No. 32 of 1928 claiming a further sum of Rs. 54,000 over and above the amount decreed in his favour by the Subordinate Judge. The memorandum of appeal in each one of these four appeals was stamped with a court-fee stamp of Rs. 4 only. The appeals came on for hearing in due course and we pronounced our judgment in the appeals on the 13th August 1931. We dismissed Appeal No. 33 entirely and we allowed the other three appeals partially. When the stage came for the preparation of the decree, the officer of the Court in charge of the preparation of the decree discovered that the memorandum of appeal in each case had been insufficiently stamped. He made a reference to the Registrar and the Registrar was of opinion that the court-fee payable on the memorandum of appeal was ad valorem upon the value of the subject-matter in dispute in the appeal. He thereupon called upon the parties to pay the deficit court-fee and directed that until the deficit court-fee was paid, the decree in the four appeals shall not be drawn up. The parties appeared and contested the jurisdiction of the Registrar to call upon them to pay additional court-fee at this stage. They further contended that the memorandum of appeal in each case had been properly stamped. The Registrar has dealt with this case in a dual capacity. As Registrar he has refused to draw up the decree so long as the deficit court-fee was not paid. As taxing officer purporting to act u/s 5, Court-fees Act, he has held that the proper court-fee payable on the memorandum of appeal in each case was ad valorem upon the value of the claim of the appellants in each case. As the parties refused to pay the court-fee the matter has now been referred to us for final orders.

Mr. Hasan Imam has questioned the jurisdiction of the taxing officer u/s 5, Court-fees Act, to pass any order at this stage of the appeal. It is however not necessary to consider the question as regards the jurisdiction of the Registrar as a taxing officer, because in any event the matter has been referred to us and u/s 28, Court-fees Act, we have undoubtedly the powers to determine whether the court-fee paid on the memorandum of appeal was sufficient.

It is next contended that the court-fee paid on the memorandum of appeal was sufficient; and reliance is placed upon a decision of this Court in Sheodhin Singh v. Norangi Lal Ram 129 Ind.Cas. 662. The facts of that case appear to be precisely similar to the facts of the present case. There also an application had been made for ascertainment of mesne profits. Mesne profits had been ascertained by the Court below and an appeal had been preferred to the High Court disputing the amount ascertained by the Court below. It was held by the taxing Judge to whom the matter had been referred by the taxing officer u/s 5, Court-fees Act, that the court-fee payable on the memorandum of appeal was not ad valorem but a fix sum of Rs. 4.

This decision was based on a Full Bench decision of this Court in Ram Golam Sahu and Others Vs. Chintaman Singh, where the question raised was whether the application for ascertainment of mesne profits made to the trial Court was to be stamped ad valorem and it was held that such an application did not require to be stamped ad valorem, the reason being that it was merely an application and ought to be stamped under Schedule 2, Court-fees Act. The Full Bench decision therefore did not decide the question of the court-fee payable on a memorandum of appeal presented against a decree made by the lower Court on an application for ascertainment of mesne profits. The decision of the taxing Judge was based on the decision of the Full Bench on a question of the court fee payable on petition for ascertainment of mesne profits and not on the question as regards the court-fee payable on the memorandum of appeal. I find myself unable to agree with the view taken by the taxing Judge in Sheodhin''s case 129 Ind.Cas. 662. u/s 4, Court Fees Act, the document which has to be considered is not the petition for ascertainment of mesne profits but the memorandum of appeal.

Section 4, Court Fees Act, provides that a document like the one now before us, namely, a memorandum of appeal, cannot be received by the High Court unless in respect of it there be paid a fee of an amount not less than that indicated by the schedules attached to the Act. Schedule 1, Article 1, Court fees Act, prescribes that a memorandum of appeal is to be stamped with a court-fee stamp calculated on the amount or value of the subject-matter in dispute in the appeal. The amount or value of the subject matter in dispute in the four appeals was the amount claimed by the appellant in each case and therefore the memorandum of appeal in each case ought to have been stamped ad valorem. This was the view taken by this Court in Nand Kumar Singh v. Bilas Ram [1917] 3 Pat. L.J. 67 . It is true that the decision arrived at in this case was doubted in the Full Bench decision of this Court in Ram Golam Sahu and Others Vs. Chintaman Singh, , referred to above; but that was only with reference to the court-fee stamp payable on the petition for ascertainment of mesne profits filed in the lower Court and not with reference to the court-fee payable on the memorandum of appeal. We are therefore of opinion that the view taken by the Registrar that the memorandum of appeal in each case ought to have been stamped ad valorem is the correct view.

The next question that arises is what orders we should pass. It is contended by the learned advocate for the appellants in each case that the Court having pronounced judgment is now functus officio and no order can be passed directing the stoppage of the preparation of the decree or calling upon the parties to pay the deficit court-fee. Reference is made to Section 33 and Order 20, Rules 6 and 7, Civil P.C., and it is contended that a judgment having been pronounced, the decree must follow, and the Court is unable to direct that the preparation of the decree be stopped until the payment of the deficit court fee. In our opinion this contention is well-founded. After the judgment has been pronounced and it has been signed and sealed, no power is left in the Court to alter it or add to it or subtract anything from it; and the judgment having been pronounced a decree must be prepared in accordance with it. Section 28, Court-fees Act, in our opinion, does not empower the Court to call upon the parties to pay the deficit court-fee after judgment has been pronounced. It only provides for validating certain acts which would be invalid if a certain document was not properly stamped. We are fortified in the view we take by a Full Bench decision of our own Court in Radika, Raman Prosad Singh v. Janaki Kuer [1919] 4 Pat. L.J. 472 where it was held that when the High Court dismisses an appeal from whatever cause, it ceases to have seisin of the appeal or case, and is powerless to call upon the respondent to pay any deficiency due to him in respect of court-fees payable in the lower Court, and consequently has no jurisdiction in such circumstances to restrain the respondent from executing the decree obtained by him.

The same view was taken in the Calcutta High Court in Jatra Mohan Sen v. Secy. of State (1918] 46 Cal. 520: see also The Shanghai Life Insurance Co. v. Mrs. Helen Constance Brown 32 Ind.Cas. 534 and Abdullah v. Secy. of State AIR 1925 Lah. 131 It is therefore clear that we have no power to stop the preparation of the decree. We would therefore direct that decrees be prepared in accordance with the judgment pronounced by us.