Norris and Beverley, JJ.
1. The question referred to us is as to the proper Court-fee to be paid on a memorandum of appeal presented to this Court under Section 108, Clause 3 of the Bengal Tenancy Act.
2. The practice hitherto has been to treat such appeals as appeals from appellate decrees.
3. It is contended, however, that the appeal should be regarded, for the purpose of the Court-fee, as an appeal from an order, and that a Court-fee of Rs. 2 is sufficient under Schedule II, Article 11 of the Court-fees Act.
4. This contention is based–
(i) On the argument that the disputes referred to in Section 106 of the Bengal Tenancy Act are not expressly described as suits.
(ii) On the authority of an order made by a Division Bench of this Court (Tottenham and Ghose, JJ.) on the 2nd August 1887, in which it was held that an appeal under Section 158, Clause 3 of the same Act, must be treated as an appeal from an order, and that the memorandum of appeal from an order under that section is subject to a Court-fee of Rs. 2 only.
5. On the first point it is to be observed that by Section 106 it is provided that “in all proceedings under the last foregoing section the Revenue Officer shall, subject to rules made by the Local Government under this Act, adopt the procedure laid down in the Code of Civil Procedure for the trial of suits, and his decision in every such proceeding shall have the force of a decree.” And by the rules therein referred to (Chapter VI, Rule 32), the proceeding is to be “dealt with as a suit between the parties under the Tenancy Act, in which the objector shall be plaintiff and the other parties defendants.”
6. As regards the second contention, it is to be observed that by Clause 3 of Section 158 “the order on any application under this section shall have the effect of a decree,” and a memorandum of appeal against such an order is expressly excluded from the purview of Article 11, Schedule II of the Court-fees Act.
7. We are of opinion, therefore, that the practice which has been hitherto observed is correct, and that the memorandum of appeal in the present case should bear a Court-fee of Rs. 10 under Article 17, Clause VI of that Schedule.