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Issues Involved:
1. Applicability of court-fees under Schedule I, Article 7 versus Schedule II, Article 13 of the Bombay Court-fees Act, 1959. 2. Determination of whether an order in winding-up proceedings under the Companies Act is a decree or an order having the force of a decree. 3. Interpretation of the term "order having the force of a decree" within the context of the Court-fees Act. Issue-wise Detailed Analysis: 1. Applicability of Court-fees: The primary issue was whether the court-fees payable on the memorandum of appeal and cross-objection should be calculated under Schedule I, Article 7, or Schedule II, Article 13 of the Bombay Court-fees Act, 1959. Initially, it was held that ad valorem court-fees were applicable under Schedule I, Article 7. However, a note suggested that Schedule II, Article 13 should apply, leading to a rehearing. 2. Nature of the Order in Winding-Up Proceedings: The court examined whether the order in question, made in a winding-up proceeding, should be considered a decree or an order having the force of a decree. The court noted that for an order to be considered a decree under the Civil Procedure Code, it must commence by a plaint and conclusively determine the rights of the parties. Although winding-up proceedings do not start with a plaint, they can decide rights between the company and third parties, making the order final and enforceable. The court emphasized that the order in this case was: "The trustees of the debenture-holders shall get Rs. 7,691.61 paise from the official liquidator as the costs and expenses incurred by them for the period for which they were in possession of the mill. The remaining portion of the claim made by them in exhibit 285 is dismissed. The above amount shall be adjusted against the claim of the liquidator against the trustees in Miscellaneous Application No. 120 of 1955, in which I have delivered judgment to-day. There will be no order as to costs in the present enquiry." This order, though not under the Civil Procedure Code, was enforceable and conclusive unless appealed. 3. Interpretation of "Order Having the Force of a Decree": The court examined the legislative intent behind the term "order having the force of a decree" in Schedule II, Article 13. It was concluded that the legislature did not intend to limit this term to decrees or orders of civil courts alone. The court referred to various articles in Schedule I, such as Article 3 (Arbitration Act awards), Article 4 (applications to set aside decrees), and Article 7 (general applications for substantive relief), to illustrate that the legislature intended a broader application. The court also considered the relevant sections of the Companies Act, 1956 (Sections 634, 635, 482, and 483), which allow orders made under the Act to be enforced like decrees and to be appealable in the same manner. The court concluded that an order in winding-up proceedings granting substantive relief is essentially similar to a decree, as it is enforceable, appealable, and binding. The court cited the Judicial Committee's decision in Lyallpur Bank Ltd. v. Ramji Das, which held that an order under the Companies Act should be treated as a decree for the purpose of rateable distribution under Section 73 of the Civil Procedure Code. This reinforced the view that such orders have the force of a decree. The court also reviewed various precedents, including: - Reference under Section 28 of Act No. VII of 1870, which distinguished between the force of a decree and its enforcement. - Official Liquidator, Universal Bank Ltd. v. M.U. Qureshi, which differentiated between orders having the force of a decree and orders enforceable as decrees. - Nawab of Beta Spinning and Weaving Co., Ltd. v. Almaram Parbhudas, which addressed rectification of a company's register. - Dundappa v. S.G. Motor Transport Co., which followed similar reasoning as Qureshi's case. The court ultimately held that the order in question had the force of a decree and thus did not fall under Schedule II, Article 13 of the Act of 1959. Consequently, the court-fees should be calculated under Schedule I, Article 7. Conclusion: The court reaffirmed its initial decision that both the appellant and the respondent were liable to pay ad valorem court-fees under Schedule I, Article 7. The parties were granted an additional ten days to pay the court-fees, given the legal ambiguity under the Act of 1959. No costs were awarded for this hearing due to the unclear legal position.
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