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TMI Blog1962 (10) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion Act. Dissatisfied with the said order, the widow of the deceased, namely Mrs. Panzy Fernandas, filed the present appeal under Section 299 of the Indian Succession Act on the 21st December, 1959. The law applicable to the present case would, therefore, be the Court Fees Act (Act No. VII of 1870) as it stood amended on that date in its application to Uttar Pradesh by various local Acts, and the same shall hereinafter be referred to as the Act. On this memorandum of appeal the appellant paid a court fee of ₹ 5/- only, which in the amount payable on a memorandum of appeal filed in the High Court under Schedule II Article 11 of the Act. On the same date, i. e., the 21st December, 1959 the Stamp Reporter made a report to the effect that the court fee on the said memorandum of appeal was payable not under Schedule II Article 11, but under Schedule II Article 17, Clause (vii) of the Act. The amount of court fee payable under Schedule II Article 17 (vii) of the Act, according to the Stamp Reporter, was ₹ 50/-, hence there was a deficiency of ₹ 45/- in the court fee. On the 15th May, 1961, the appellant filed objections to this office report, and took up the positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the appellant in this regard. In support of his argument the learned Counsel for the appellant attempted to rely on the definition of the term decree in Section 2(2) of the Code of Civil Procedure (Act V of 1908), in the main portion of which the term decree is defined as a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and may be either preliminary or final. The learned Counsel emphasised the use of the term suit in the above definition, and argued that the above definition indicated that a decree under the Code of Civil Procedure could only be passed In a proceeding which could be termed as a suit . The learned Counsel also cited the case of Hansraj Gupta v. Dehra Dun-Mussoorie Electric Tramway Co., Ltd. , in which it was observed that a suit was ordinarily instituted by the presentation of a plaint. The learned Counsel contended that in the present case the proceeding in which the order appealed against was passed could not be described as a suit. Hence the order in question could not be termed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act XXXIX of 1925) are not commenced by the institution of a plaint. On the other hand, as Section 278 of the said Act shows, they are commenced by an application or a petition . 4. It may also be noted in this connection that Section 299 of the Indian Succession Act (Act XXXIX of 1925), under which appeals are preferred from the orders of the District Judge to the High Court, runs as follows: 299. Appeals from orders of District Judge.--Every order made by the District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (V of 1908), applicable to appeals. It is significant to note that the decision appealed against is described, in the above provision of law as an order , and not a decree. 5. For the above reasons we are of opinion) that the decision of a Court in proceedings for letters of administration cannot be described as a decree. 6. The next question that arises is whether it can be described as an order having the force of a decree. The learned Counsel on behalf of the appellant argued that it was not an order having the force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the estate of the deceased is itself a valuable right, and, in this view of the matter, it is difficult to hold that such an order does not adjudicate un the rights of any party. 8. A reference to the various provisions of the Code of Civil Procedure (Act VIII of 1859) also indicates that the term decree , although not defined in that Code, connotes the final adjudication of the rights of parties which are in controversy in the suit. Decree as stated in Section 189 of the Code of 1859, cited above, is prepared on the basis of judgment. Section 183 of the Code of 1859 shows that the judgment is pronounced under the said Code after the exhibits are perused, the witnesses examined, and the parties heard in person or by their respective pleaders. Section 185 states that the judgment shall contain the point or points for determination, the decision thereupon, and the reasons for the decision. Section 186 states that where issues have been framed in a suit, the Court shall state its finding or decision on each separate issue, unless the finding upon any one or more of the issues be sufficient for the decision of the suit. Section 187 lays down that the1 judgment shall contain a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or inexecutable. Even if it is inexecutable, it does not cease to have force. The reason is that a decree derives its force from the fact that it is the formal determination of a lis by a competent Court, and not from its executability. The question of executability arises subsequent to the passing of a decree. Adjudicability on rights is a feature of decree quite distinct from its executability. The former is an inherent feature of a decree, and is something internal. The latter is merely an extraneous process to which a decree might or might not be capable of being subjected and is something external. The former feature is common to all decrees; the latter is not. Orders which have the force of a decree might, therefore, be said to be orders which, like decrees, possess the aforementioned twin characteristics of all decrees. The stage of execution may follow the passing of a decree, and is, no doubt, a result of it. The force of a decree, however, does not depend on what may follow it, but what it has already achieved at the moment when it is passed. Provisions relating to the definition, constitution and scope of decrees are quite separate from the provisions relating to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates on the rights that are in controversy in the proceedings before the Court concerned. 12. The learned Counsel for the appellant also argued that before an order could be said to have the force of a decree there must be an explicit statutory provision to that effect. As there is no provision in the Indian Succession Act laying down that orders passed under Section 295 shall have the force of a decree, orders passed thereunder cannot be considered to be orders that have the force of a decree. Reliance in support of his contention was placed by the learned Counsel on the case of Satyanarayan v. Murarilal AIR 1954 Hyd 82 . We are unable to accept this contention. It is no doubt, true that sometimes the statute itself does make a provision that orders of a certain type shall have the force of a decree or shall be deemed to be decrees. From that, however, it does not follow that, in the absence of an express statutory provision to that effect, an order cannot be regarded as an order having the force of a decree. As already observed by us above, the question whether a particular order has the force of a decree or not depends on the inherent strength of the order itself. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case. For the above reasons, we are of opinion that an order granting letters of administration should be considered to be an order having the force of a decree. An appeal from such an order would not, therefore, be governed by the provisions of Article 11 of Schedule II of the Act. 14. The next question that arises is whether such an appeal is governed by Article 17 (vii) of Schedule II of the Act. The relevant portion of Article 17 (vii) of Schedule II of the Act, as amended in Uttar Pradesh, runs as follows : 17. Plaint or memo-randum of appeal in each of the following suits:-- (i) .................. (ii) .................. (iii) .................. (iv) .................. (v) .................. (vi) .................. (vii) .................. (a) When the value of the suit or appeal for purposes of jurisdiction does not exceed one thou-sand rupees; Twenty five rupees Every other suit not for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1865), itself indicates that such a proceeding is not a suit. It is for this reason that it was found necessary in Section 295 of the Indian Succession Act to lay down that such proceeding should, as nearly as possible, take form of a regular suit. The use of the words as nearly as may be , itself indicates that the proceeding in question was not considered to be exactly the same as a suit. Again, the fact that the section itself also directs that such a proceeding shall take the form of a regular suit further indicates that in substance it is not a suit. It is only because there is an obvious difference in the basic nature of the two proceedings that it was found necessary to direct that one was to take the form of the other. Moreover, the direction regarding the change of the-form is given only in cases where there is contention. It follows, therefore, that where there is no contention, i.e. in non-contentious cases, even this change of form does not take place, and the proceedings fully retain their initial complexion. The observations of Sulaiman and Banerji, JJ. contained in the subsequent Bench decision of the Allahabad High Court in ILR 50 All 238 : AIR 7928 All 51 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act, as applicable to suits, would also become applicable to such proceedings. Section 295 of the Indian Succession Act has merely applied the procedure prescribed in the Civil Procedure Code for suits to proceedings mentioned therein. It does not state that the Court fees payable under the Act in suits under the Civil Procedure Code should also be applicable to such proceedings. In other words, the application of the Civil Procedure Code is limited to the procedure to be followed in the course of the proceedings, and does not extend to the matter of court fees payable under the Act on the petition before the proceedings start. 20. On behalf of the State it was also argued that Schedule II Article 17 (vii) of the Act would be applicable to the present case in view of the definition of the word suit in the Act which includes an appeal. The word suit is defined in Sec, 2(iv) of the Act as follows : 'Suit' includes a first or second appeal from a decree in a suit and also a Letters Patent Appeal. We are of opinion that even if this definition is taken into consideration in construing this section, it is of no avail. Even according to this definition, the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel for the State suggested that in such a case the appellant should have the option to fix the value at any figure that he chooses, and the court fee should be levied according to the value put by him on the subject-matter in dispute. We find it difficult to accept this contention also. The provisions of Schedule I Article 1 are to be read in conjunction with Section 7 of the Act. A perusal of Section 7 of the Act shows that where the statute permitted this method, it expressly stated that. Thus Section 7(iv)(b) lays down that in a suit for accounts the court fee shall be payable according, to the amount at which the relief sought is valued in the plaint or memorandum of appeal. A similar provision is made in Section 7(iv.B)(e) of the Act in respect of suits to set aside an award other than an award mentioned in Section 8, and in Section 7(iv-C)(c) in respect of suits for establishing a right to the custody or guardianship of any person. In the last two cases the Legislature has also set forth the minimum amount at which it is open to a party to fix the valuation. If, therefore, the Legislature intended that such an appeal can be valued arbitrarily at the option ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows : 1. Application or petition- (e) When presented to a High Court- (s) in any other case not otherwise provided for (Five rupees) We are inclined to accept this submission. While doing it, we are conscious of the fact that in the Act a distinction has been maintained between the words ''application'' or petition'' and memorandum of appeal''. The Act, however, does not appear to be a well-drafted one. It is full of loopholes, and presents situations which are sometimes confusing and baffling. In the present case, the learned Counsel for the parties have been unable to point out any specific provision of law in the Act which could clearly govern the particular case. We cannot also persuade ourselves to believe that the Act contemplated that such appeals should be filed without payment of any court fee. The Act has nowhere defined the term application or petition . There is, therefore, no specific bar in the Act to invoking the aforesaid provision of law in a case like this. In fact, there are a number of cases in which High Courts in India have applied the aforesaid provision to such cases. We would, therefore, hold that an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or less than an application, and, consequently, subject to one fee of eight annas only under Article (1), Clause (b), (2), Schedule II, of the Court Fees Act, and we find that this was the Court fee properly payable by the petitioners on their memorandum of appeal to the Special Judge. 30. In Chhedi v. Mt. Jaikora 4 Oudh Cas 289 a question arose regarding the amount of court fee payable in an appeal under Section 75 of the Oudh Land Revenue Act. In this case the learned Judges held that Article 11 of Schedule II of the Act was inapplicable to the case, as an order under Section 74 of the Oudh Land Revenue Act had the force of a decree, although it was not a decree. They further held that Article 1 of Schedule I was also inapplicable to the said case. In this situation, following the above Full Bench case of the Calcutta High Court, they observed as follows : There appears to be no article of the Court fees Act expressly applicable to the memorandum of appeal. In such a case, and where the proceeding was held not to be a suit, it was decided that the memorandum of appeal was nothing more or less than an application subject to the fee provided in Article I, Schedule II, Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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