Shambhu Sharan Upadhya vs Maharaja Kumar Dwarkadhish Parsad Singh and Another

Rowland, J.—This is a reference by the Taxing Officer and raises the question how court-fee is to be calculated for an appeal from a decision under o. 21, E. 6SH, Civil P.C. The appellant is the assignee of a decree and claims that his judgment-debtor is entitled to periodical payments from the garnishee by way of babuana maintenance. The decree sought, to be executed is valued at Rs. 15,000. The maintenance is said to be a monthly payment of Rs. 200. The Stamp Reporter thinks that court-fee ought to be calculated in accordance with Article 1 of Schedule l, Court-fees Act, as a memorandum of appeal not falling within Article 11 of Schedule 2. Article 11 of Schedule 2 prescribes a fixed court-fee on a memorandum bf appeal when the appeal is not from a decree or order having the force of a decree.

Rule 68H states in very clear terms that where the liability of any garnishee has been tried and determined under these rules the order shall have the same force and be subject to the same conditions as to appeals or otherwise as if it were a decree. I have no doubt that the memorandum of appeal falls within Article 1 of Schedule 1 and not within Article 11 of Schedule 2. I was reminded at the hearing that appeals from decisions u/s 47 are charged with fixed fee only, but that is not because they fall under Article 11 of Schedule 2, for they do not; it is because the Local Government under Notification No. 2576/LA-25 dated 5th December 1921 have directed in item 5 that the fees chargeable on appeals from orders u/s 47, Civil P.C., 1908, shall be limited to the amounts chargeable under Article 11 of Schedule 2. There is no similar exemption in favour of the fees chargeable on any appeals not falling u/s 47.

Section 47 is concerned with the decision of questions arising between parties to the suit, that is to say, the decree-holder and his judgment-debtor and has no application to decisions under Rule 63H of Order 21. Appeals from such decisions must be valued by the appellant and court-fee paid ad valorem on the value.

No decision has been cited which is directly in point but the view I take is consistent with the reasoning in Bhutnath Ta and Others Vs. Barindra Nath Bhattacharya and Others, and in Jugal Kishore Gulab Singh v. Dina Nath Siri Ram AIR 1934 Lah. 958. There are obiter dicta in an Allahabad case Ram Chandra and Another Vs. Ram Lal and Another, , which may suggest a possibility that an appeal by a decree-holder and an appeal by a garnishee may stand on a different footing but this was not expressly decided, the point for determination being what was the court-fee payable by the garnishee appellant.

The appeal should be valued at the amount which the decree-holder seeks to recover from the garnishee. This of course is not necessarily the same as the amount for which he has a decree against the judgment-debtor. Three weeks'' time is allowed to the appellant within which he may either pay the court-fee demanded by the Stamp Reporter or amend the valuation and pay court-fee on the amended valuation.