Sital Prasad Singh and others vs Jagdeo Singh

Jwala Prasad, J.—This is a reference by the Taxing Officer about the court fee to be paid upon the memorandum of appeal. The facts appear to be as follows.

The appellants obtained a mortgage decree against Gopi Nath Singh, Bodh Narayan, the Mahanth of Bodh Gaya and others. Bodh Narayan was a prior mortgagee, and the Mahanth was made a defendant as a subsequent purchaser. In execution of that decree some of the mortgaged properties were sold for Rs. 71,198/- on 21st October 1918. Bodh Narayan also obtained a decree on his prior bonds making Harbans Narayan a defendant. He claimed Rs. 36,907-7-7 out of the sum realised by the auction sale in the decree of Harbans Narayan. This was disallowed by the Subordinate Judge. Bodh Narayan then came up to this court in appeal. That appeal was treated as one under S. 47 of the Code of Civil Procedure. The order of the Subordinate Judge was set aside by this Court and Bodh Narayan was declared entitled to receive Rs. 36,907-7-7 out of the sale proceeds. Against the order of this Court there is an appeal pending before the Privy Council. During the pendency of the appeal in this Court the decree-holder Harbans Narayan had withdrawn the entire sale proceeds of Rs. 71,198 on furnishing security. Bodh Narayan is dead, and his representative Har Ballabh Narayan Singh assigned the decree to Jagdeo Singh and he applied to the Subordinate Judge for an order that Sital Prasad, representative in interest of Harbans Narayan, who is dead, should deposit Rs. 36,907-7-7 in Court as ordered by the High Court. Sital Prasad opposed this petition and the matter came to this Court again. Upon the final order passed by this Court Sital Prasad deposited Rs. 36,907-7-7 in the Court on the 6th February 1922. Jagdeo Singh applicant claimed besides the aforesaid amount deposited by the decree-holder interest and damages from 4th April 1919 the date on which the sum had been taken out of the Court by Harbans Narayan and others. His claim has been allowed by the Court below and the respondent has been asked to deposit Rs. 11.736 as interest. Against the order of the Subordinate Judge, Sital Prasad and others have preferred an appeal to this Court, with a Court-fee of Rs. 4/- only. The Stamp Reporter reported that ad valorem court-fee should have been paid upon the aforesaid amount of Rs. 11,736/-. This view has been accepted by the Taxing Officer. The appellant claims that he is liable to pay only the court fee already affixed by him on the memorandum of appeal. On account of this difference the matter has come to me as a Taxing Judge.

The point appears to be somewhat difficult, and the views of the High Courts have been divergent thereupon. The relevant Sections in the CPC upon this point are Ss. 47 and 144. S. 144 corresponds with S. 583 of the CPC of 1882. That Section ran as follows :

When a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal under this Chapter desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred : and such Court shall proceed to execute the decree passed in appeal, according to the rules hereinbefore prescribed for the execution of decrees in suits.

Section 244 of the old Code ran as follows :--" The following questions shall be determined by order of the Court executing a decree and not by separate suit (namely) :--

(a) Questions regarding the amount of any mesne profits as to which the decree directed enquiry ;

(b) Questions regarding the amount of any mesne profits, or interest which the decree has made payable in respect of the subject-matter of a suit, between the date of its institution and the execution of decree or the expiration of three years from the date of decree ;

(c) any other questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree or to the stay or execution thereof.

Section 583 which under the old Code occurred in Chapter XLI relating to appeals has now been replaced by Section 144 of the CPC under Part XI, headed "Miscellaneous". That section runs as follows :

(1) Where and in so far as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution, or otherwise, cause such restitution to be made as will so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed ; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages compensation and mesne profits which are properly consequential on such variation or reversal.

S. 47, clause (1) which corresponds to S. 244, clause (c) of the old CPC runs as follows :--

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this Section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court fees.

(3) Where a question arises as to whether any person is or is not representative of a party, such questions shall for the purposes of this Section be determined by the Court.

Clauses (a) and (b) of S. 244 do not now find place in S. 47.

S. 35 of the Court Fees Act empowers the Government to reduce or remit the fees mentioned in the first and second Schedules of the Act. Under this Section the Governor General in Council issued Notification No. 4650 dated the 10th September 1889. Clause (6) of that Notification directed that the fees chargeable on appeals from orders under 8. 244 of the CPC (Act XIV of 1882), shall be limited to the amounts chargeable under Article 2 of the second Schedule.

By Notification No. 4344 S. P., dated the 6th October 1893, this was amended by direction that the fee chargeable on appeals from orders under clause (c) of S. 244 shall be the amounts chargeable under Article 2 of the Second Schedule to the Court Fees Act, 1817.

The present Section 35 (Act XIV of 1882), of the Court Fees Act empowers the Local Government to reduce or remit the fees mentioned in the First and Second Schedules of the Court Fees Act. Under this power the Local Government issued Notification No. 2576/LA-25, dated the 5th December 1921, directing that the fee chargeable on appeals from orders under S. 47 of the CPC (Act V of 1908), shall be limited to the amounts chargeable under Article 11 of the Second Schedule. Article 11 of the Second Schedule provides that on a memorandum of appeal, when the appeal is not from a decree or an order having the force of a decree and is presented to a High Court, the Court fee chargeable is Rs. 4.

S. 2 of the CPC (Act XIV of 1882), defined "decree" to include an order determining any question mentioned or referred to in S. 244 of that Code. Similarly, S. 2 of the present CPC (Act V of 1908), defines "decree" as including orders determining any question within S. 47 of the Code. Prior to the present CPC the relief by way of restitution was to be given by execution of the appellate decree under S. 583 of the old Code. Now under the present Code the relief by way of restitution is to be given by an application in the Court of first instance under S. 144 of the Code. Orders under S. 533 relating to restitution under the old Code of 1862 used to be appealable as if they were orders passed under S. 241 of the Code of Civil Procedure. Therefore there was no necessity of making orders under S. 583 as being included in the definition of "decree". The present arrangement of the Code has taken out S. 583 of the old Code from the Chapter relating to appeals and has made a distinct provision in S. 144 under the heading "Miscellaneous". In order to remove any doubt as to whether orders under S. 144 would be appealable or not, such orders have been included in the definition of "decree" along with S. 47 of the Code.

In the case of Gangadhar Marwari v. Lachman Singh [1010] 11 C. L. J. 541 : 6 I. C. 125, Brett and Sharfuddin, JJ. held that an application for mesne profits made not by the plaintiffs but by the defendants against whom the suit had been dismissed, by way of restitution under S. 583 Civil Procedure Code, comes under S. 244 (c) of the Code, and that such application would be chargeable with Court fees under Article 11, Schedule II of the Act and not ad valorem.

In the unreported case of Babu Shyamnandan Kishore Singh v. Rai Radha Krishna M.A. No. 370 of 1913, decided on 20th December 1945, (Sharfuddin and Chapman, JJ.) this view was upheld and it was held that an order passed under S. 144 of the CPC came under the Notification, inasmuch as such order under S. 144 of the present Code amounts to an order under S. 244 (c) of the old Code. They further held that the reference in the Notification to S. 244 (c) of the old Code must relate to S. 144 by virtue of S. 8 of the General Clauses Act. This was the view taken under the present Code of Civil Procedure.

The matter was fully dealt with by Chatterjea, J. in the case of Madan Mohan Dey v. Nogendra Nath Day [1917] 21 C. W. N. 544 : 39 I. C. 640. The learned Judge referring to the Notification referred to above puts the question to himself as to whether an order under S. 144 is an order which decides a question falling under S. 47 (1) of the present Code, and he replies that under S. 583 of the old Code an application for restitution was treated as an application for execution of the appellate decree, and it was expressly provided that the Court shall proceed to execute the decree passed on appeal according to the rules for execution of decrees in suits. It was accordingly held that an order under S. 583 fell within the provisions of S. 244(c) and therefore clause (6) of the Notification applied. Continuing the learned Judge observes:

It is true S. 144 of the present Code omits the provision that the Court is to proceed according to the rules prescribed for the execution of decrees in suits, but it expressly lays down that no suit shall be instituted for the purpose of claiming any restitution which can be obtained by application under the Section. The Court in making restitution has to execute the decree of reversal (which necessarily carries with it the right to restitution even though the decree may be silent as to such restitution) in order to give effect to the reversal of the decree. That being so, an order under S. 144 comes under S. 47 (1) and clause 6 of the Notification applies to such an order.

On the 26th March 1917 the matter was agitated in this Court upon the report of the Stamp Reporter and ultimately came up for the decision of the Taxing Judge (Roe, J.). The learned Judge expressed the view taken in the case of Madan Mohan Dey v. Nogendra Nath Day [1917] 21 C. W. N. 544 : 39 I. C. 640 and directed that the Court fee of Rs. 2 as was payable under the old Court Pees Act was sufficient (vide the unreported case of Sheikh Kamaruddin Mandal v. Raja Thakur Barham M. A. No. 142 of 1917.

The Allahabad High Court has taken a contrary view : vide Jagdip Narain Singh v. Mahant Keshogir and another, [1901] A. W. N. 180 That was an authority under the old Code.

Under the present Code and under the Notification of the Government of the United Provinces, Daniels, J. took the same view in the case of Baijnath Das v. Balmukand 1925 All. 137 : 47 All. 98 : 22 A.L.J. 881 : 5 L. R. A. Civ. 773 and the reason given by him is as follows: --

An application under S. 144 is no doubt one which carries out the intention of the appellate Court''s decree, but it does not directly execute that decree. What it does is to undo an execution wrongly granted by the Court below. In this case the High Court''s decree was declaratory and could only have been executed in respect of costs. The appellant must, therefore, stamp his appeal ad valorem.

The learned Judge felt the inequity of levying ad valorem fee upon a miscellaneous application of this kind, and he observed as follows:--

It is unlikely that the omission of orders under S. 144 from the Notification referred to above was due to deliberate intention. The exemption of appeals under S. 47 from an ad valorem fee dates back to a time when the Code of 1882 was in force. Under that Code, S. 583, an application by way of restitution was treated as a proceeding in execution and there was no need for separate notification under the section corresponding to the present S. 144. It is probable that if the matter is brought to the notice of Government, Government will not consider it desirable to impose an ad valorem fee on a party who is merely asking the Court to set right a wrong unintentionally done by the Court itself. I direct that a copy of this judgment be forwarded to Government with the suggestion that the provisions of paragraph (4) of the Notification should be extended to appeals from orders under S. 144.

The Notification of the Government of the United Provinces referred to by Daniels, J., exactly corresponds with the Notification of the Government of Bihar and Orissa already referred to, which makes fee payable on appeals from orders under S. 47 of the present CPC of 1908, one under Article 11 of Schedule II. I am inclined to think that the Notification did not consider it necessary to include orders under S. 144. Whereas S. 583 of the old Code of 1882 has been removed from the category of the Chapter headed " Appalls " which gave relief by way of restitution to a party when the decree under which injury has been done to him has been set aside by the appellate Court by executing the decree of the appellate Court, the present S. 144 gives the same relief and prescribes the same forum, namely, the Court which passes the decree from which the relief is sought. Determination of a question arising under S. 144 will naturally relate Co the execution, discharge or satisfaction of the decree either of the First Court or of the appellate Court. If the First Court''s decree has been discharged by the appellate Court, the question arising under S. 144 will naturally be a question as to''; the discharge of the decree coming under S. 47 of the Code of Civil Procedure. This view has been accepted by the Calcutta High Court under the present Code and the view is in consonance with reason, equity and justice so much so that even the learned Judge of the Allahabad High Court, Daniels, J, felt that if the interpretation was correct it requires to be set right by Legislature. This province used to be governed formerly by the rules and practice obtaining in the Calcutta High Court, and the practice has been followed by this Court ever since in the matter with which we are at present concerned. The Taxing Judge (Roe, J) in 1917 gave effect to the Calcutta view and held that the fee chargeable was one under Article 11 of Schedule II of the Court-Fees Act. I as a Taxing Judge am not prepared to go against the view of my predecessor in office. Whatever trouble there might have arisen in the interpretation due to S. 144 not being expressly included in the Government Notification, it is, I think, amply obviated by the reason given by me above.

In a matter of this kind the decision of a Taxing Judge such as that of Roe, J., should be the rule of the Court and it should not be disturbed by his successor in office.

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