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Pirojsha Bhicaji Vs. Dadabhai Kersasji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 230 of 1941 and 1164 of 1940
Judge
Reported inAIR1946Bom168; (1945)47BOMLR861
AppellantPirojsha Bhicaji
RespondentDadabhai Kersasji
Excerpt:
civil procedure code (act v of 1908), order xlviii, rule 1(1), order xlv, rule 8(b), - admission of appeal to privy councils-notice to respondent-whether such notice requires payment of process fee.;a notice issued by the court under the provisions of order xlv, rule 8(b), of the civil procedure code, 1908, giving an intimation by the court to the respondents that an appeal to his majesty in council has been admitted, is not liable to any process fee under order xlviii, rule 1(1), of the code, is as much as the notice is a mere intimation and does not require the other party to appear in court. - .....party on whose behalf it is issued, unless the court otherwise directs. in the first place, the notice required to be given under order xlv, rule 8(b), is not a process, and, secondly, it is not issued on behalf of either party, but it is a mere intimation given by the court to the respondents that the appeal has been admitted. the notice required to be given under order xlv, rule 3, sub-rule (2), is to call upon the opposite party to show cause why a certificate should not be granted; but the notice under order xlv, rule 8(6), does not call upon the respondents either to appear or to oppose any prayer made by the appellant. according to wharton's law lexicon, 14th edn., a process requires the defendant to appear on a certain date. it is a call of authority or an admonition to appear.....
Judgment:

Lokur, J.

1. In this case security has been furnished and deposit has been made as directed. The appeal has been declared as admitted under Order XLV, Rule 8(a), of the Civil Procedure Code, 1908. Notice of the admission of the appeal has to be given to the respondents under Order XLV, Rule 8(6), of the Civil Procedure Code, and a question has been raised as to whether process fees have to be paid by the appellant for the said notice.

2. It is urged on behalf of the appellant that it has been the practice of this Court not to levy process fees on such notices.

3. We have ascertained from the office that the practice has not been always uniform. In some instances fees were levied on such notices; but in a majority of the cases no process fees were levied.

4. Under Order XLVIII, Rule 1, Sub-rule (1), every process issued under the Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs. In the first place, the notice required to be given under Order XLV, Rule 8(b), is not a process, and, secondly, it is not issued on behalf of either party, but it is a mere intimation given by the Court to the respondents that the appeal has been admitted. The notice required to be given under Order XLV, Rule 3, Sub-rule (2), is to call upon the opposite party to show cause why a certificate should not be granted; but the notice under Order XLV, Rule 8(6), does not call upon the respondents either to appear or to oppose any prayer made by the appellant. According to Wharton's Law Lexicon, 14th edn., a process requires the defendant to appear on a certain date. It is a call of authority or an admonition to appear in Court. But where the opposite party is not required to appear in Court, and the notice amounts to a mere intimation, it cannot be regarded as a process. Thus, for instance, under Order XX, Rule 1, the Court, after the case has been heard, is required to pronounce judgment in open Court, either at once or on some future day, of which due 'notice' is to be given to the parties or their pleaders. Although the word 'notice' appears in the rule, it does not amount to 'process', but only an intimation, and hence does not require any process fee to be paid by either party. Rule 98 on page 24 of the Rules of the Bombay High Court, Appellate Side, sets out the table of fees to be levied for serving and executing processes issued by the High Court in its appellate jurisdiction. That table has no application to notices, which do not amount to processes, but are merely an intimation to the parties. The difference between the notice required to be given under Order XLV, Rule 3(2), and Order XLV, Rule 8(6), can be easily seen from the forms of the two notices under the two rules as given in Appendix G of the Code. The former notice is a process, while the latter is a mere intimation.

5. We, therefore, hold that no fee is to be levied on the notice to be given to the respondents under Order XLV, Rule 8, of the Civil Procedure Code.


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