9911796707
TMI Blog1944 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1920 and has been able to trace it much further back. In a recent case, however, (Letters Patent Appeal No. 116 of 1941), where the appeal was against a payment order, an objection was raised before the Bench that the order was one having the force of a decree within the meaning of section 199 of the Companies Act and that, therefore. Schedule 2, Article 11, was not applicable, and an ad valorem fee had to be paid under Schedule I, Article 1. The Bench upheld this objection which does not seem to have been contested by the appellant who made good the small deficiency. Acting under this authority, the stamp reporter has demanded ad valorem fees in the three appeals under consideration and the learned taxing officer has referred the matter to me on the main ground that the decision in Letters Patent Appeal No. 116 of 1941 was contrary to the established practice, and that by it the practice was not specifically overruled. There is, therefore, an apparent conflict between the practice and that judgment which ought to be resolved. In my judgment, however, this question does not at all arise in the first two appeals before me. Section 202 of the Companies Act clearly differentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a petition under section 184 of the Companies Act for settling the list of contributories in the matter of the Universal Bank Ltd., (in liquidation). This application bore a court-fee stamp of Rs. 5. A notice issued, amongst others, to Mr. M.U. Qureshi, who on 11th December 1940, presented an application under section 38 read with section 184 of the Companies Act, for rectification of the register by removal of his name. This application was also presented on a court-fee of Rs. 5. On 3rd June 1943 the petition of Mr. Qureshi was accepted by the learned liquidation Judge, who directed his name to be removed and ordered the official liquidator to pay Rs. 350 by way of compensation. This was an order within the meaning of section 199 of the Companies Act. On 24th June 1943 an appeal was filed by the official liquidator under section 202 of the Companies Act on which a court-fee of Rs. 5 was affixed. An objection was made by the stamp reporter that the court-fee should be ad valorem on the basis of a decision in L. P. A. No. 116 of 1941 decided on 13fh May 1943. The stamp reporter contended that following this decision the court-fee should be ad valorem on Rs. 2,700, being the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears that the question was not seriously argued before the Letters Patent Bench and that the appellant made little or no effort to controvert the objection of the respondent, thus upheld. The correctness of the decision on this point has been impugned before us; and since the practice of the Court has been to accept such appeals on a fixed court-fee under Article 11, Schedule 2, the matter has been placed by orders of the Hon'ble Chief Justice before this Full Bench for further consideration. The main point, and in my opinion, the only point of substance urged before us by Mr. Gopal Singh for the petitioner is that there is a material difference between an order having the force of a decree (which is specifically excluded from the operation of Article 11, Schedule 2) and an order which may be enforced in the same manner in which a decree may be enforced. With due respect to the learned Judges who decided L. P. A. No. 116 of 1941, I would say that the view stated as a general proposition therein that under section 199 of the Companies Act, the orders of the liquidation Judge have the force of decrees is based on a misapprehension of the wording of section 199 of the Companies Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in clause (2) of section 89 of the Lunacy Act, IV of 1912. Section 89 provides that the Court shall after summary enquiry make an order for the recovery of the cost of maintenance of the lunatic; and sub-section (2) of this section lays down that "such order shall be enforced in the same manner, and shall be of the same force and effect as a decree." We must presume that this declaration of the force of the order, and the provisions for its enforcement are not merely redundant but mean two different things. The distinction between the force of a decree and the method of enforcement was noticed in Reference under section 28 of Act No. VII of 1870 [1895] 17 All. 238 . This judgment was a decision by a taxing Judge on a reference from a taxing officer; but the judgment recites that the learned Judge in making the decision had "the great advantage of the assistance of" two other Judges named therein, who at his request sat with him to hear it argued. The learned Judge goes on to say that these Judges authorised him to say that they concurred in the order he was about to pass and in the reasons for it. In effect therefore the judgment has the authority of a Full Bench. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
