Hari Mohan Singh vs Kali Prosad Chaliha on 13 July, 1905

Calcutta High Court
Hari Mohan Singh vs Kali Prosad Chaliha on 13 July, 1905
Equivalent citations: (1906) ILR 33 Cal 11
Author: Geidt
Bench: Ghose, Geidt


Geidt J.

1. A preliminary objection is taken to the hearing of this appeal on the ground that the appellant has not paid the proper Court-fee. The amount paid on the memorandum of appeal is Rs. 2 only, and for the respondent it is contended that the memorandum of appeal ought to hear an ad-valorem fee in accordance with Schedule I of the Court-fees Act. Article 1 of Sche-. dule I provides that a memorandum of appeal not otherwise provided for in the” Act is to bear a Court-fee according to the amount or value of the subject-matter in dispute. The appellant, in placing a Court-fee of Rs. 2 on his memorandum of appeal, appears to have treated the matter as one coming within Article 11 of Schedule II of the Act which relates to a memorandum of appeal, when the appeal is not from an order rejecting a plaint or from a decree or an order having the force of a decree. Now the present appeal is brought against a judgment and decree directing that an award made on a reference to arbitration ,by the parties themselves should be filed under the provisions of Section 526 of the Civil Procedure Code. The decree is in terms to the effect that the plaintiff is to recover the sum of Rs. 3,248 and odd as awarded by the arbitrators. An order directing that such an award be filed is, it appears to us, an order having the force of a decree and is, in effect, a decree, and this view is in accordance with, the ruling of the Privy Council in Ghulam Khan v. Muhammad Hassan (1901) I.L.R. 29 Cale. 167, which clearly lays down that an order made in a contentious proceeding under Sections 525 and 526 of the Civil Procedure Code is a decree. The view which we take was also taken by Old field J. in Dayanand v. Bakhtauar Singh (1883) I.L.R. 5 All. 333.

2. Our attention has however been called to the case of Upadhya Thaliur v. Persidh Singh (1895) I.L.R. 23 Cale. 723 decided by a Full Bench of this Court. That case had reference to Section 104, Clause 2, and Section 108, Clause 2 of the Bengal Tenancy Act, the provisions whereof are substantially different from those that are to be found in Sections 525 and 526 of the Code of Civil Procedure, and hence we think that that decision is not applicable to the case before us. We are of opinion that the present appeal is an appeal from a decree and ought, therefore, to bear a Court-fee in accordance with Article 1 of Schedule I of the Court-fees Act. We postpone the hearing of this appeal in order to give the appellant an opportunity of affixing the deficient Court-fee. The time allowed for this purpose is three weeks from this date.

3. We reserve the question of the costs of this hearing.

Ghose J.

4. I am of the same opinion.

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