ORDER
S.S. Subramani, J.
1. All these revisions under Article 227 of the Constitution of India are against the Order dated 25.9.1996, passed by the Principal Judge of City Civil Court, Madras, which reads as follows:-
“Heard. In view of the decision reported in 1982(2) Andhra W.R.181 only an appeal is maintainable and fixed court-fee has to be paid. But in view of the orders passed by our High Court in C.R.P. No. 2999/85 dated 19.9.88 only regular appeal has to be filed as if a decree. Hence regular appeal has to be filed on payment of Court-fee. Time 3 Weeks.”
2. Material facts which are necessary for the purpose of disposal of these Revisions may be stated as follows:-
In all these Revisions, the revision petitioner is the purchaser in Court-auction. For enforcing a mortgage which was executed by one Ekambara Sastri for himself and on behalf of his family, suit was filed by Indian Bank, the mortgagee, as O.S. No. 104 of 1972. A preliminary decree was passed in the said suit on 20.10.1973 and final decree was also passed on 7.12.1974. Since the amount was not paid, the mortgaged properties were brought to sale, and the appellant (revision petitioner) purchased the same in court auction on 30.10.1985, and the sale was also confirmed on 5.12.1985. After obtaining sale certificate, the appellant moved for taking delivery of the property as E.A. Nos. 128 and 186 of 1986. While the proceedings were pending, it is seen that the first respondent herein moved an application for redelivery of the property. The case put forward by the first respondent was that he is the owner of the property having purchased the same from one Govindasami, who in turn had purchased the same in Court-auction in O.S. No. 5377 of 1970. The said suit was filed by Mercantile Credit Corporation against Ekambara Sastri for recovery of money. There was also another suit as O.S. No. 9300 of 1987, on the file of City Civil Court, Madras, for declaration and Injunction, or in the alternative, to set aside the purchase by the appellant, filed by other persons. The said suit was one for declaration that the court auction sale does not bind the share of everyone of the joint family. The said suit was decreed, and the decision is pending in Appeal as A.S. No. 1137 of 1995.
3. By the impugned Order passed in O.S. No. 9300 of 1987 which was filed by the plaintiff, Court directed that the appellant is liable to redeliver the property under Order 21, Rule 99, C.P.C. It was said that a Revision has to be filed. But the Office returned the papers on the ground that only an Appeal lies. The same was converted into a Civil Miscellaneous Appeal, and filed before the lower appellate Court. On the C.M. Appeal, at the SR. stage itself, lower Court has passed the above Order (extracted supra). The lower Court was of the view that the impugned Order directing redelivery is a decree for all purposes, and, therefore, a Regular Appeal has to be filed on payment of ad valorem Court- fee. How far the said Order is correct, is the matter that requires consideration in these Revisions.
4. Court-fees Act being a fiscal enactment, has to be interpreted strictly. It imposes a burden on the subject and it should be considered in favour of the subject as far as possible. In all fiscal enactments words are to be construed precisely and in a manner which bears least heavily on the subject. It is also said that it requires an interpretation which neither harms the Revenue nor goes out of its way to collect court-fees after the suit has been decided. It is said that Court should bear in mind three well-known cannons of interpretation of fiscal statues, namely: (i) such statutes are to be construed strictly, (ii) the subject should not be made liable for payment of enhanced court- fee unless such a step is warranted by the clear provisions of the statute; and (iii) where there is doubt in the matter, an interpretation favourable to the subject should be preferred.
5. I need take into consideration only the decision reported in Empress Mills v. Municipal Committee, Wardha, when it was held thus:-
“If in construing a taxing statute, there are two interpretations possible, then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him.”
On the basis of this interpretation, how far the Order of the Court below is correct is to considered.
6. Even after the Code of Civil Procedure was amended under Act 104 of 1976, there is no corresponding Amendment to the Court Fee Act. Before 1976, an Order Under Section 47, C.P.C. was also included within the definition of decree. But, while defining ‘decree’ Section 2(2), C.P.C. say thus:-
“2. In this Act, unless there is anything repugnant in the subject or context,-
(1)………
(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default”
Sub-section (3) of Section 2, C.P.C. defined “decree holder” as ‘any person in whose favour a decree has been passed or an order capable of execution has been made’
7. Order 21, C.P.C. deals with the procedure in execution, Order 21, Rule 58, C.P.C. deals with ‘Adjudication of claims to or objections to attachment of property’ Sub-section (4) of Order 21, Rule 58, C.P.C. says thus:-
“Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.”
8. Order 21, Rule 97, C.P.C. onwards, deals with ‘Resistance or obstruction to possession of immovable property’. It says that when there is an obstruction for delivery of possession, the Court shall proceed to adjudicate upon the application in accordance with the provisions contained in the subsequent Rules, Rule 98 deals with ‘Orders after adjudication’. Rule 99 of Order 21, C.P.C. deals with Dispossession by decree- holder or purchaser of any person other than the judgment debtor. When such an application is filed by the person dispossessed, the same will also be adjudicated, and Rule 101 says that the determination must be by the Court dealing with the application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree’
9. In one of the earliest decisions of the Lahore High Court reported in Official Liquidator, Universal Bank Ltd. v. M.U. Qureshi, A.I.R.1945 LAHORE 146, the question that came for consideration was regarding an Appeal Under Section 199 of the Companies Act, 1913. The opinion of the Full Bench is reported at page 147. The question that was posed before the Full Bench was, ‘Whether by virtue of Section 199, Companies Act, an executable order made under the Companies Act is an order having the force of a decree within the meaning of Sechedule 2, Article 11, Court-fees Act?’. The Full Bench considered the question and held thus:-
“It would seem that the distinction between “force”, and “mode of enforcement,” was not present to the minds of the learned Judges, who decided L.P.A. No. 116 of 1941. We are not here concerned with the practical difference, if any, between a “decree” as defined by the Civil Procedure Code and an order that has by statute the force of a decree or which is deemed to be a decree. But, in my view, there is a distinction, both real and practical, and not merely artificial, as the learned A.A.G. contends, between an order that has by statute the force of a decree and an order that may by statute be enforced in the same manner as a decree. An order that is given by statute the force of a decree is an order that proprietor vigore stands as a decree whatever the consequences, whereas an order that may by statute be enforced as a decree is an order that may be of little or no effect, proprio vigore, and only becomes effective, when executed by the method by which a decree may be executed. In other words, it is a mere shadow unless and until life is infused into it by an application for execution. The Murray Oxford Dictionary makes a clear distinction between “force” and “enforceability” It is a well recognized rule of interpretation of statutes, as the learned Assistant to the Advocate-General concedes, that there is a presumption that the Legislature means different things by different phraseology; and when it describes an order as having the force of a decree it must mean some thing different from the description of an order which may be enforced in the same manner as a decree….”
10. In a still earlier decision of our High Court reported in Inre Venkataratnam, A.I.R.1941 Madras 639, the question that came for consideration was, regarding court-fee payable on a memorandum of appeal under the Madras Agriculturists ‘Relief Act. The said Act provided as if it were a decree. Rule 9 therein said that the order of the Court declaring the amount of the debt under Rule 7 shall be “subject to appeal and second appeal as if it were a decree in an original suit”. The question that came for consideration was, whether ad valorem court-fee will have to be paid since the appeal has to be treated as if it was a decree in an original suit. While considering the same, a Division Bench of this Court followed two earlier Decisions, viz., Jamsung Devabhai v. Goyabhai Kirkhabai, 16 Bom. 408 and Upadhyay Thakur v. Preshidh Singh, 23 Calcutta 723 (Full Bench). While considering the same, their Lordships said:-
“……The rules proceed on the basis that there is a mere application resulting in a declaratory order which is not a decree, by which for purposes of appeal is to be treated, as if it were a decree. It is contended that if this order is to be treated for purposes of appeal as if it were a decree, it must necessarily attract the provisions of the Court-fees Act for appeals from decrees. We are unable to accept this contention in the absence of any specific provision in the rules attracting the provisions of the Court-fees Act governing appeals from decree. The Court-fees Act being a fiscal statute, we cannot in the presence of an ambiguity guess at the meaning of the authority which enacts the rules and draw from the presumed intentions of that authority an inference which is adverse to the party who has to pay the tax.
Article 17-A applies in terms to a plaint or memorandum of appeal in a suit. We are not concerned with a memorandum of appeal in a suit. We are concerned with a memorandum of appeal in an application, the order in which is made appealable as if it were a decree. It seems to us that Article 11 of Sechdule 2 directly covers an appeal of this kind. Article 11 applies to a memorandum of appeal when the appeal is from an order inclusive of an order determining any question Under Section 47 or Section 144, Civil P.C….”
11. In Mrs. Vasanthi v. K. Karuppanna Gounder and Ors., 1988 (2) L.W 45 the question that came for consideration was whether a Regular Appeal lies against an order in a Claim Petition, or only an Appeal lies against an Order. A Learned Judge of this Court (K.M. Natarajan, J.) considered this question in detail after taking into consideration various decisions of other High Courts and held thus:-
“…It is clear from the above decision that Section 2(2) C.P.C. which defines ‘decree’ excludes from the definition of a decree any adjudication from which an appeal lies as an appeal from an order as in this case…”
Learned Judge further went on and said thus:-
“…On a careful analysis of the relevant provisions of the definition of ‘decree’ in Section 2(92)(a), Section 104(1)(i) read with 21 Rule 58(4) C.P.C., and the ratio laid done in various decisions quoted above, no regular appeal is contemplated as provided Under Section 96 C.P.C., but a civil miscellaneous appeal alone is contemplated and as such the lower appellate Court is wrong in holding that a civil miscellaneous appeal is not maintainable and only a regular appeal would lie and consequently dismissing the appeal on that score…”
If this is the legal position in so far as Order 21 Rule 58(4) C.P.C. is concerned. Rule 103 of Order 21, C.P.C. which is also on the same language, will equally apply for Orders under Rule 101, C.P.C. also.
12. I may say that this decision wasn’t accepted but distinguished by the Kerala High Court in the decision reported in Anto Mamkoottam v. Peruvanthanam Service Co-op. Bank, 1996 (2) Kerala Law Times 962. In that decision, a Division Bench of that High court held that Under Section 96 C.P.C. only a regular appeal is maintainable. But, I am bound by the decision of this Court.
13. Question of payment of court-fees under Schedule II, Article 3(1) of the Andhra Pradesh Court-fees and Suits Valuation Act came for consideration before the Andhra Pradesh High Court in the decision reported in Biksha Reddy and Ors. v. G. Venuna Bai and Ors., 1982 (II) Andh.W.R.181. It was held that only a fixed court-fees need be paid and not ad valorem court-fee. From Paragraph 7 onwards, it was held thus:-
“Now after amendment in 1976, Rule 108 reads as follows:-
“Where any application has been adjudicated upon under Rule 98 or Rule 100 the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were as decree.”
In view of the amended Rule, an order made under Rule 98 has the same force as if it is a decree and it is appealable, it does not follow therefrom that an application made under Rule 97 is a suit. Equally, what is under Rule 98 is an “Order”. It is true that the order is appealable as if it were a decree. But it does not mean that the application under Rule 97 becomes a suit. The learned counsel for the respondents submitted that under Rule 101 all questions including questions relating to right, title or interest in the property arising between the parties have to be determined by the Court dealing with the application and not by a separate suit and, therefore it is really the trial of a regular suit. The mere fact that the Court is given the power to decide all questions under Rule 101 in the application under Rule 97 does not mean that it should be treated as a regular suit. It is not disputed that on the application made under Rule 97 only a fixed court-fee of rupee one was paid. It does not also stand to reason that the decree-holder should once again pay court-fee on the market value of property. He has already paid it in the suit and obtained a decree. When he wanted to execute it he was obstructed. He wants to remove the obstruction. So, he files an application. It will only be penalising him to say that he should pay the court-fee once again on the market value of the property, in that petition. Therefore, I do not agree with the learned counsel for the petitioners that the application should be valued as a regular suit and so also the appeal under Order 21, Rule 103, Civil Procedure Code.
Here, language of Order 21, Rule 103, Civil Procedure Code, can be compared with Order 21, Rule 58. Rule 58 relates to adjudication of claims and objections to attachment of property. Sub-rule (2) of Rule 58 is the same as Rule 101. Sub-rule (4) of Rule 58 is the same as Rule 103. Sub-rule (5) of Rule 58 says that where claim or objection is preferred and the Court refuses to entertain it, then the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute but subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive. This provision is similar to old Rule 103. After amendment of Rules 97 to 103 we do not now have a similar provision. Therefore, I hold that the appeal need not be valued as if it is from a regular suit.
The next question for my consideration is what is the court-fee payable on such an appeal? In my opinion, it is payable under Schedule II, Article 3 (i) it reads as follows:-
“Memorandum of appeal from an order inclusive of an order determining any question Under Section 47 or Section 144 of the Code of Civil Procedure, 1908 and not otherwise provide for when presented.
(i) To any Court other than the High Court or to any Executive Officer other than the Board of Revenue or Chief Executive Authority…” Three Rupees.”
It is a Memorandum of Appeal from an order made under the Code of Civil Procedure. It is not otherwise provided for in the Act. Therefore, only fixed court-fee of Rs. 3/- is payable on it.”
14. I, think, on the basis of the said decision which seems to be reasonable, the court-fee paid on the memorandum of appeal, is correct. It is an order under Code of Civil Procedure, and not otherwise provided for by any of the Article of the court-fees Act. Therefore, the Court-fee need be paid under Schedule II, Art, 3 of the Court-fees Act.
15. The adjudication is made on application and not on a suit. Normally a decree is passed in a suit. Under Act 104 of 1976, these adjudications were also directed to be made in execution itself, for which a decree is obtained by one of the parties. If it is a part of execution, and if the person who seeks redelivery of the property also files a claim petition, he need pay court-fee only on the application as per Orders passed thereon. Naturally, there cannot be a change in the court-fees when appeal is taken from that Order. The application, for all purposes, is treated as suit, and the Legislature has purposely used only the word ‘application under Order 21, Rules 58, 99, 100 and 101 of the Code of Civil Procedure. One important circumstance may also be made be taken into consideration. If the claimant need pay court-fee only on the application, a person who has already obtained a decree and seeking execution, cannot be compelled to pay more court-fee, and that too on ad valorem basis. The decree-holder has to be in a better position in such a case, and that too when he is in the position of a defendant in a Claim Petition.
16. The lower court has relied on an unreported decision of this court in Lodd Mohankrishnadoss Govindas and Anr. v. Yasoda Bai and Ors., C.R.P. No. 2999 of 1985 dt. 19.9.1988 by Padmini Jesudurai, J. I do not think that decision has any application is the facts of this case. In that case, the learned Judge held that an appeal lies from the order since it is an application. The question as to what is the Court-fee payable did not arise for consideration. In that case, the learned Judge also did not consider whether appeal is to be filed as if it were a decree, or whether the appeal is from a decree. That point has been decided only by K.M.Natarajan,J. in the decision reported in Mrs. Vasanthi v. K. Karuppanna Gounder and Ors., 1988 (2) L.W 45. In that view of the matter, I hold that the Appeal filed against the Order is correct, and the court-fee paid on the memorandum of appeal is sufficient.
17. The lower Court is directed to register the Appeals, if the papers are otherwise in order. The Civil Revision Petitions are allowed to the extent indicated above.