1. This application raises a simple question, namely, whether the fees chargeable for serving and executing processes issued by the civil Courts subordinate to the High Court are affected by the surcharge to which process-fees leviable under the Court-fees Act, 1870, are subject under Bombay Act XV of 1943.
2. The applicant filed suit No. 35 of 1943 in the Court of the Second Class Subordinate Judge, Athni. He paid a sum as process-fees calculated according to the rules which are to be found, in the Civil Manual issued by the High Court, Vol. I, (1940), at pp. 137 to 143. According to the office of the learned Judge, the applicant was liable under Bombay Act XV of 1943 to pay the surcharge prescribed thereby on the process-fee and the process-fee paid was, therefore, insufficient. The plaintiff contended that he was not liable to pay the surcharge, but the trial Court overruled that contention and, holding that Bombay Act XV of 1943 applied to such process-fees, gave him three days' time to make up the deficit. As the applicant did not make any further payment, his suit was dismissed.
3. There are two Acts, namely, the Court-fees Act of 1870 and the Bombay Civil Courts Act of 1869, under which the fees chargeable for serving and executing processes issued by civil Courts established within the local limits of the appellate jurisdiction of the High Court may be prescribed and levied. Section 20 of the Court-fees Act lays down that the High Court shall make rules, inter alia, regarding such fees, which, after being confirmed by the Provincial Government and published in the official Gazette, 'shall thereupon have the force of law.' That section appears in Chapter IV of the Act which is headed ' Process-fees.' There can be no doubt, therefore, that process-fees come within the meaning of the expression 'court-fees.' It appears that the original rules prescribing the procese-fees leviable by the civil Courts subordinate to the High Court were made under Section 20 of the Court-fees Act. Those rules can be found in Chapter XI of the 1925 edition of the Manual of Civil Circulars issued by this Court for the guidance of the civil Courts. Those rules have now been replaced by the rules made in 1930 by the High Court under Section 42 of the Bombay Civil Courts Act, 1869, which empowers the High Court, with the sanction of the Provincial Government, to 'prescribe and regulate the fees to be taken for any process issued by any Court the constitution of which is declared ' by the said Act, and the new rules, after being duly sanctioned by the Governor of Bombay in Council, were published in the Bombay Government Gazette, 1930, Part I, at p. 1927. Bombay Act XV of 1943 was made by the Governor of Bombay under the powers derived from a proclamation issued by him in 1939 under Section 93 of the Government of India Act, 1935, whereby all powers vested by or under the said Act in the Provincial Legislature were assumed by the Governor. The preamble to the said Act begins thus:
Whereas it is expedient to provide for an increase in Court-fees leviable under the Court-fees Act 1870, in Its application to the Province of Bombay;
and Section 2 of the said Act reads:
Notwithstanding anything contained in the Court-fees Act, ,1870, in its application to the Province of Bombay (hereinafter called the principal Act). All fees leviable under the principal Act shall be increased by a surcharge at the rates specified in the Schedule annexed hereto.
It is quite clear that the fees that were increased by the surcharge in question were fees leviable under the Court-fees Act of 1870. But, as I have pointed out, the process-fees in force at present are fees leviable, not under the said, Act but under the rules made under Section 42 of the Bombay Civil Courts Act. ' Leviable ' cannot, in our opinion, mean 'capable (on appropriate rules being made) of being levied'; we think that it means ' such as can (under the rules at present in force) be levied.' It cannot, therefore, be said that the surcharge which has been brought into existence by Bombay Act XV of 1943 applies to the process-fees leviable by the civil Courts subordinate to the High Court.
4. That being our view, the lower Court was clearly wrong in holding that the provisions of Bombay Act XV of 1943 applied to the processt-fee in question. The rule will, therefore, be made absolute with costs and the order of the trial Court set aside. We direct that suit No. 35 of 1943 shall be restored to the file of the learned Civil Judge at Athni for decision according to law.