KR JAGDISH PRATAP BAHADUR SINGH Vs. RAJ KUMAR UDAI PRATAP BAHADUR SINGH

JUDGEMENT

(1.) This is a reference by the Taxing Officer in regard to the court-fee payable on an appeal to this Court under Section 45, U.P. Encumbered Estates Act, against a simple money decree of a Special Judge, first grade, for Rs. 1,85,950-15-9. The appellant made an application under Section of the Act to the Collector and on reference of the application to the Special Judge and after his inquiry under Section 14 this decree has been passed under Sub-section (7) which states: If the Special Judge finds that any amount is to the claimant he shall pass a simple money decree for such amount together with any costs which he may allow in respect of proceedings in his Court...together with pendente lite and future interest.... Such decree shall be deemed to a decree of a Civil Court of competent jurisdiction.

(2.) The decree is executable under the Act, and is sent to the Collector by the Special 1938 A/13 & 11 Judge for execution. The question at issue in the lower Court was the amount due from the appellants to respondent 1, and against the decree in favour of respondent 1, the appellants claim in appeal that nothing is due to respondent 1 from the appellants. The Taxing Officer considers that the appeal to this Court should bear a court-fee of an ad valorem amount in the manner in which an appeal from a simple money decree would bear a Court-fee. The appellants have only paid a fee of Rs. 10 claiming that the decree is not an ordinary decree, that it is not executable under the Civil Procedure Code but only under the special provisions of the Encumbered Estates Act, and that there-fore the provisions of the Court-fees Act applying to simple money decrees of a Civil Court are not applicable. The question is of very considerable importance as the difference in the amount of court-fee would be very large and it is probable that a large number of appeals of this nature will come before this Court. The Taxing Officer refers to two cases which the appellants rely on but neither of those cases which were decided by a Bench of this Court appears to me to cover the point. In view of the importance of the matter, I recommend that it should be laid before a Full Bench.

(3.) The question before us is whether the Court-fees on a memorandum of appeal should or should not be paid ad valorem. The appeal is one against a decree passed by the Special Judge under Section 14, United Provinces Encumbered Estates Act. Court-fees in this Court are paid under Section 4, Court-fees Act, which says that: No document of any of the kinds specified in Schedule 1 or Schedule 2 to this Act annexed, as chargeable with fees, shall be filed...or shall be received...by a High Court; unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedule as the proper fee for such document.