Manak Chand and others vs Kewal Chand

Bapna, J.—This is a reference to a Division Bench.

Manak Chand and his brothers instituted a suit for return of their jewellery pledged with the defendant Kewal Chand to secure a loan of Rs. 2312/- agreeing to pay the amount which may be found due. The defendant pleaded that the amount due against the plaintiffs was Rs. 9993-8-6. The trial Court passed a decree for return of the jewellery conditioned on their making, a payment of Rs. 3342-4-0.

Both parties went up in appeal. The District Judge dismissed the plaintiffs'' appeal, but allowed that of the defendant, and raised the amount due to Rs. 6791-4-0 with future interest at 6 per cent. per annum.

The plaintiffs filed a second appeal for reduction of the amount, while the defendant filed cross-objections for increase of the amount. The appeal and the cross-objections came before Nawal Kishore C.J. and Sharma J., and by judgment dated 13-10-1950, the appeal was dismissed, the cross-objections were allowed, and the amount payable to the defendant was raised to Rs. 7819-6-6. The operative portion of the judgment was:

The result is that the sum decreed in favour of the defendant is increased by Rs. 1038-2-6 to Rs. 7819-6-6 with future interest at 6 per cent. per annum. The plaintiffs shall pay the decretal amount within a period of three months from this date.

The plaintiffs filed a review application against the judgment dated 13-10-1950, on the ground that there was a mistake or error on the face of the record. The review petition was filed beyond 90 days of the date of the decree, bull within 90 days from the date of preparation of the decree. They at first paid a court-fee of Rs. 58-12-0, and later increased it to Rs. 117-8-0.

The office, however, reported that the fee paid by the appellants on appeal was Rs. 299/-, and consequently were liable to pay Rs. 149-8-0, even if they were held entitled to prefer the review petition on half the court-fees. The office also noted that if the time be calculated from the date of the decree the application had been presented after 90 days and full fees were chargeable.

The case was heard by Sharma J. sitting singly as Nawalkishore J. had retired. Counsel for the respondent supported the office report at the hearing and further urged that the court-fees should be paid on the amount of the decree which was sought to be varied by the review petition. The learned Judge in Single Bench has referred two points to a Division Bench as there was some difference of opinion amongst the High Courts in India:

Whether the period of 90 days mentioned in Art. 5, Sch. I of the Court-fees Act is to be counted from the date of the judgment or from the date of the preparation of the decree?

Whether the court-fee on a review petition is to be paid ad valorem on the amount of the decree sought to be varied or according to the relief claimed in the review petition?

Our answers to these questions are as follows:

Under Order XX, Rule 7, Civil P.C., the decree must bear the date of the judgment. The date of the decree, therefore, is the date of the judgment irrespective of the fact that the decree may have been prepared later on. Reference in this connection may be made to - Behari Dass Vs. Jagdish and Others, which was a case where the period from the date of judgment till the date of preparation of decree was sought to be excluded in computing limitation for the appeal and it was held that that time was not the time requisite for obtaining a copy of the decree, and time was allowed to run from the date of judgment, even though the decree was prepared and signed on a later date.

Our answer to the first question is that the period of.90 days mentioned in Arts. 4 and 5, Sch. I, Court-fees Act, is to be counted from the date of the decree, which under the law, is to be the date of the judgment, and not from the date when the decree is actually prepared.

On the second question again the authorities were considered in an unreported decision of this Court at Jodhpur, - Chandanmal and Another Vs. Roopnarain, where the words "leviable on a plaint or memorandum of appeal" were held to mean properly leviable on the plaint or memorandum of appeal in which the judgment sought to be reviewed is passed and not on any imaginary plaint or memorandum of appeal which might have been presented at the time the review application was filed asking for the same relief as in the application for review. This decision accepted the view taken by the High Courts of Allahabad, Calcutta and Oudh in the following cases: - Parmeshar Kurmi and Another Vs. Bakhtawar Pande and Others, ; - Nandi Ram alias Nandi Lal Agrani Vs. Jogendra Chandra Dutta and Others, ; - ''Nageshar Sahai v. Shiam Bahadur'', AIR 1924 Oudh 108 (E); - ''In the matter of Sheikh Maqbul Ahmed'', 6 All LJ 215 (F). The view taken by the Madras and Bombay High Courts in the under-mentioned cases was dissented from: - ''In re Manohar G. Tambekar'', 4 Bom 26 (G); - Hajee Moosa Sait and Brothers thro'' its managing partner Abdulla Salai Muhammed Sait Vs. P.S.P. Abdul Karim, .

The view taken by this Court is in accordance with the preponderance of judicial opinion on these questions, and we propose to follow that opinion although something can be said in favour of the other view as well. Our answer to the second question is that the words "fee leviable on a plaint or memorandum of appeal" mean the fee properly leviable on the plaint in case the review is of a decision in a suit or on the memorandum of appeal if the review is against the judgment in appeal.

In the present case the appeal filed by the plaintiffs was dismissed, and no review of that decision is claimed. The petitioner is aggrieved by the acceptance of the cross-objections and variation of the lower Court''s decree by acceptance of those cross-objections. On the aforesaid interpretation the fee leviable on the review petition which has been filed after 90 days would be the one which was paid on the cross-objections by the defendant respondent.

With these answers the case is returned to the Single Bench for further hearing. No order as to costs.