Manohar Pershad, C.J.
1. In these three appeals (C.M.As. 314/1962 and 63 and 64 of 1963) which have been preferred under Section 11 of the Requisitioning and Acquisition of Immoveable Property Act, XXX of 1952, against the award of the Court of the Arbitrator (District Judge), East Godavary, the appellants valued the appeals at Rs. 21,871/-. Rs. 576/- and Rs. 1056/- respectively and paid Court-fee under Article 11 of Schedule II of the Court Fees Act of 1870 (as amended) treating the appeals as appeals against orders. The office raised an objection that the appellants have to pay ad valorem Court-fee under Schedule 1, Article 1 on the amounts of Rs. 21,871/--. Rs. 576/- and Rs. 1056/- respectively after deducting the court-fee already paid.
2. Learned counsel for the appellants. Shri P. Suryanarayana and Shri M. Suryanarayana murthy, contend that the office note cannot be accepted and that the court-fee paid is proper. As this matter related to the payment of Court-fee, notice was given to the Government Pleader.
3. The point that arises for determination is whether the appellants should pay ad valorem Court-fee on the additional amount claimed by the appellants or whether they are liable to pay only fixed Court-fee under Article 11, Sch. II of the court-fees Act. The learned counsel for the appellants relying on the case of Dodhla Malliah v. State of Andhra Pradesh, : AIR1964AP216 ; Kanwar Jagat v. Punjab State, ; Debi Din v. Secy. of State, AIR 1939 All 127 and Hirji Virji v. Govt. of Bombay, AIR 1945 Bom 348, contended that the Court-fee payable would only be as provided under Article 11 of Schedule II of the Court-fees Act, whereas the contention of Shri Shankar Rao, learned Government Pleader, is that the Court-fee payable would be under Article 1 of Schedule I of the Court-tees Act. In this connection the learned Government Pleader has relied on the cases of In re: Ananda Lal, AIR 1932 Cal 346 and Satya Charan v. State of West Bengal, : AIR1959Cal609 .
4. In order to appreciate the respective contentions we have to refer to Section 8 of the Court-fees Act of 1870 (as amended). It reads:
'The amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purposes shall be computed according to the differences between the amount awarded and the amount claimed by the appellant.'
The question, that arises is what meaning has to be given to the word 'order' occurring in this section. It is common ground that the word 'order' has not been defined in the Court-fees Act of 1870. The contention of Shri Suryanarayana and Shri Suryanarana Murthy is that since the Act has not defined the word 'order', it has to be understood as defined in Section 2(14) of the Code of Civil Procedure, which says ''order' means the formal expression of any decision of a Civil Court which is not a decree.'
It is very difficult to accept the contention of the learned counsel. It is no doubt true that the word 'order' has not been defined in the Court-fees Act and it is not a decree or an order having the force of a decree, still it would be an order that would come within the scope of Section 8 of the Court-fees Act. An identical question had come up in the case AIR 1932 Cal 346, Rankin, C. J., while dealing with the scope of Section 8 of the Court-fees Act observed as follows:
'Section 8 dealing with the amount of fees payable makes a comparison between the two things: the amount awarded and the amount claimed by the appellant. It appears to be reasonably clear that the comparison can only be between the amount awarded to the appellant and the amount claimed by the appellant. There can be no comparison between the amount awarded to a number of per sons and the amount claimed by one individual representing his individual interest. Where the appellants have been given nothing by way of compensation, and they claim a substantial sum, the amount oi Court-fee is to be computed according to the amount of their claim.'
It was further observed:
'Section 8 standing in the text of the Act proceeds upon the assumption that otherwise in the Act there is a charge which is an ad valorem charge and is not fixed charge, and the only way in which it can be said that there is a charge which has to be computed is that the charge is imposed by Article 1, Sch. I. The provisions of Section 8 involving as they do that the fee in the class of cases dealt with in ad valorem fee, are themselves sufficient to exclude any question of Article 11, Schedule 2, being made applicable to such cases Section 8 shows one perfectly clearly that an appeal regarding compensation in a land acquisition case is not under Article 11, Sch. 2, because it is not a fixed fee at all'.
Relying on this decision, the same High Court in the case of : AIR1959Cal609 held as follows:
'Section 8 of the Court-tees Act does not use the expression 'Order' simpliciter but uses the expression 'order relating to compensation under any Act for the time being in force.' That being so, there is no reason why the expression order in Section 8 must be treated as an order under Section 2(14), Civil Procedure Code. An award made under Section 7 of the Requisitioning and Acquisition of Immoveable Property Act is an order within the meaning of Section 8 of the Court-fees Act and in an appeal against such an award court-tee under Sch. I, Article 1 of the Court-fees Act is payable on the difference of the amount awarded by the Arbitrator and that claimed by the appellant.'
Banerjee, J,, while dealing with the case of AIR 1945 Bom. 348 dissented from the view expressed therein on the ground that as Section 8 of lie Court-fees Act does not use the expression 'order' simpliciter, but uses the expression 'order relating to compensation under any Act for the time being in force,' that expression cannot be treated as an order under Section 2(14) C.P.C.
5. : AIR1964AP216 was a case arising under the Land Acquisition Act. Under that Act any decision given is a decision of the Court and it amounts to a decree. This case, therefore, does not help the contention of the learned counsel for the appellant.
8. The decision in AIR 1945 Bom 348 no doubt supports the contention of the appellants, but, with great respect to the learned Judge, we cannot agree that an order mentioned in Section 8 of the Court-fees Act must be treated as an order under Section 2(14) of the Code of Civil Procedure because the Act does not use the expression 'order' simpliciter, but used the expression 'order relating to compensation under any Act for the time being in force.'
7. The Bench decision of the Punjab High Court in also no doubt supports the contention of the appellants, but it may be noted that in this case also the learned Judges have taken the view that since the Court-fees Act has not defined the word 'order' the word 'order' used in Section 8 must be understood as one which is defined under the Code of Civil Procedure. As discussed above, with great respect, we do not agree with this view.
8. The Allahabad High Court in the case AIR 1939 AH 127, has also taken the same view as that of the Bombay High Court. But as discussed above, we do not agree with this view.
9. We are, therefore, clear that since theseappeals arise under the provisions of the Requisitioning and Acquisition of ImmoveableProperty Act, 30 of 1952, and the award passedis an order coming within the meaning of Section 8 of the Court-fees Act, the appellantswill have to pay ad valorem court-fee underArticle 1 Schedule 1 of the Court-fees Act of1870 (as amended) We accept the office noteand direct the appellants to make up the deficit in the Court-Fee. The appellants are giventwo months, time to make up the deficiency.