Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Tajammul Husain Khan vs Muhammad Husain Khan on 22 January, 1913
Equivalent citations: 35 Ind Cas 158
Author: Tudball
Bench: Tudball


Tudball, J.

1. This is a reference by the Taxing Officer. The facts are simple. A suit for sale was brought on the basis of a mortgage. The suit was decreed. One of the mortgagors paid off the amount of the decree. He then brought a suit for contribution against his co-mortgagors in respect of the excess amount paid by him and future interest. He sought to enforce his lien against the defendant’s share in the property and obtained a decree for sale. In execution of such decree the property was put to sale, but the debt remained unsatisfied. The plaintiff accordingly applied to the Court under Order XXXIV, Rule 6, of the Code of Civil Procedure on the ground that the balance was legally recoverable from the defendant otherwise than out of the property sold. The defendant contested the matter and finally the Court granted the decree mentioned iii Order XXXIV, Rule 6. The defendant appealed to the District Judge from that decree, affixing an 8-annas stamp as Court-fee. His appeal was dismissed and he has come to this Court affixing a stamp of Rs. 2 as Court-fee on the memorandum of appeal. The office has reported that in the case of both the appeals, i.e., in the Court below and in-this Court the memorandum of appeal is insufficiently stamped, as Article 11 of the Second Schedule of the Court Fees Act does not apply. This Article refers to a memorandum of appeal when the appeal is not from a decree or an order which has the force of a decree. This Article clearly does not apply in the present case, because the appeals both to this Court and in the Court below are from the decree passed under Order XXXIV, Rule 6, of the Code of Civil Procedure. A reference to that rule makes the matter perfectly clear. It runs as follows: “Where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the Court may pass a decree for such amount.” The appeal in the present case is from a decree passed under this rule. The Code clearly and distinctly distinguishes between orders and decrees and where the Code uses the word ‘decree,’ it does not mean an ‘order.’ It is quite clear that the order passed by the Court below, using the word in its loose sense, clearly falls within the definition of a decree in Section 2(2). It has conclusively determined the rights of the plaintiff to recover the balance of the sum from the person and other property of the defendant. It seems to me that the matter is not open to question. In the present case the appellant has to make good a sum of Rs. 194-8 for the1 Court below as well as Rs. 193 for this Court, the said amount being calculated ad valorem on the amount decreed. I allow one month to the appellant to make good the deficiency.

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