S. Rahamani vs S. Sugathan and Another

Khalid, J.—This Miscellaneous First Appeal which remains unnumbered raises a question as to the correct court fee payable in an appeal against an order passed in an application u/s 13 of the Hindu Marriages Act, 1955. The court fee paid in the court below is Rs. 30 under Article I(vi) of Schedule II of the Kerala Court Fees and Suits Valuation Act, 1959. In the appeal, the court fee paid is Rs. 5. The office has objected to this and has pointed out that the court fee payable in appeal is also Rs. 30 as is provide u/s 52 of the Court Fees Act.

The Appellant''s counsel points out that court fee payable in an appeal in such cases is only Rs. 5 and for this purpose relies upon Article 3(iii)(A)(1)(b) of Schedule II, which reads:

Memorandum of Appeal from an order inclusive of an order determining any question u/s 47 or Section 144 of the Code of Civil Procedure, 1908, and not otherwise provided for when presented:

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(iii) to the High Court.--(A) from an order other than an order under the Kerala Agriculturists'' Debt Relief Act, 1959.

(1) Where the order was passed by a subordinate court or other authority.

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(b) In any other case five rupees.

This argument is defective because it overlooks the use of the expression "memorandum of appeal from an order". Section 13 of the Hindu Marriage Act deals with an application for divorce and it provides that on a petition presented either by the husband or the wife, any marriage solemnised may be dissolved by a ''decree� on the grounds specified therein. It is therefore clear that an order passed in an application filed u/s 13 of the Hindu Marriages Act is a decree for all purposes. It is not a decree by any legal fiction or by a deeming provision. The statute itself lays down that the order to be passed shall be a decree. If this is borne in mind, then there is no difficulty in holding that Section 52 of the Court Fees Act should apply and the fee payable in appeal shall be the same as the fee that would be payable in the Court of the first instance.

The Appellant''s counsel sought support for his contention from a judgment of this Court rendered by Krishna Iyer, J. reported in Mukundan v. Nalini 1971 KLT 743. Considering the question of court fee in an appeal filed against orders u/s 10A and 10B of the Madras Marumakkathayam Act, 1933, the learned Judge held that the nominal court fee as provided in Article 11(g) or Article 3(iii)(A)(1)(b) of Schedule II of the Act was sufficient. With great respect, I agree. However, the difference between the Madras Marumakkathayam Act and the Hindu Marriage Act has to be borne in mind while appreciating the principle laid down in the above decision. Unlike Section 13 which provides that orders under that Section shall be decrees, Section 10C of the Madras Marumakkathayam Act does not lay down that the orders under Sections 10A and 10B are decrees. Section 10C reads as follows:

10-C. All orders made by the court in any proceeding u/s 10A or Section 10B shall be enforced in like manner as a decree of the court made in the exercise of the original civil jurisdiction is enforced and may be appealed from under any law for the time being in force.

It is thus clear that Section 10C only provides that the enforcement of the orders passed u/s 10A and 10B shall be in like manner as a decree of the court. For the purpose of execution alone, the orders u/s 10A or 10B are deemed to be decrees, in the same manner as orders of rent control court, which are not by themselves decrees, are exalted to the position of decrees only for the purpose of execution.

The decision reported in AIR 1959 Patna 186 which was noted with approval by Krishna Iyer, J. in Mukundan v. Malini 1971 KLT 743, was relied upon. In that case, a Division Bench of the Patna High Court was considering the court fee payable on an application u/s 13 of the Hindu Marriages Act, 1955. It was held that the court fee payable in appeal is the fixed lesser amount. The principle enunciated there cannot be adopted in this case since it was conceded there that the court fees on an application u/s 13 of the Hindu Marriages Act were not otherwise provided for by the Court Fees Act. It was therefore held that an application u/s 13 required to be stamped only as a petition. In the instant case, there is specific provision for payment of court fee in an application u/s 13. The above decision cannot therefore help the Appellant.

I hold that the court fee payable in this case is the same as is payable in the court below. Time for payment of court fee till 4th October 1979.