1. This is an application purporting to be under Order 44 Rule 1 C. P. C. for permission to file in forma pauperis a Special Appeal from a judgment of a Judge of this Court in a First Appeal from a decree passed by a Civil fudge in a suit for arrears of maintenance allowance and recovery of moveables. Order 44 Rule 1 lays down that a person entitled to prefer an appeal, who is unable to pay the court fee required on the memorandum of appeal, may present an application accompanied by a memorandum of appeal and may be allowed to appeal as a pauper. If a Special Appeal is governed by Order 44 the applicant is entitled to be allowed to appeal as a pauper and the sole question is whether it is governed by Order 44 Rule 1 or not. The Special Appeal itself is not an appeal governed by the Code of Civil Procedure as the Code does not provide for Special Appeals at all. It is an appeal filed under the Letters Patent and Rules of Court.
Section 117 C. P. C. lays down that 'Save as provided in this part or in part X or in rules, the provisions of this Code shall apply to such High Courts'. There is nothing in it regarding the applicability or non-applicability of Order 44 to Special Appeals. Part X deals with rules and contains Sections 121 to 131, Section 121 provides that the rules in the first Schedule of the Code which contains Order 44, shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of other rules in Part X. Section 122 provides that a High Court may make rules regulating its own procedure and may by such rules annul or alter or add to all or any of the rules in the first schedule. Thus a High Court has the power to make a rule annulling or altering or adding to any of the rules in Order 44. The effect of the provisions of Sections 117 and 122 is that Order 44 will apply to a Special Appeal unless there is anything in the rules contained in the schedule to the Code or any other rules made by the High Court annulling or altering it so as to make it not applicable
It may be conceded that there is nothing in Order 44 or in any other rule contained in the schedule making Rule 1 of Order 44 not applicable to a Special Appeal but there is Rule 10(2) in Chapter 9 of Rules of Court made by this Court laying down that.
'in a Special Appeal from the judgment of one Judge passed in the exercise of appellate jurisdiction, the memorandum of appeal, duly stamped, shall be presented within sixty days from the date of judgment.'
If this rule means that every Special Appeal must be stamped with court fee it is a rule annulling or altering Order 44 Rule 1 in its application to a Special Appeal. The provision that a Special Appeal must be duly stamped is a positive and emphatic statement requiring every Special Appeal to be stamped regardless of other provisions under which it may not be required to be stamped. This Court had the power to make such a provision. The word 'shall' used in the rule makes the duly stamping of a Special Appeal a mandatory provision. There is a clear conflict between this provision and that contained in Order 44 Rule 1 and it must be held that it is a provision, subject to which the provisions of the Code will apply to Special Appeals.
In the face of this provision Order 44 Rule 1 laying down that a person may he permitted to file an appeal as a pauper cannot be applied to a Special Appeal. It is not open to us to treat the words 'duly stamped' occurring in Rule 10(2) of the Rules of Court as redundant or without any content or as not adding to anything already contained in Section 4 of the Court Fees Act. Section 4 of the Court-fee's Act requires a memorandum of appeal including a memorandum of Special Appeal (but excluding that of a Special Appeal from a judgment passed by a Single Judge in the exercise of the ordinary original civil jurisdiction of the Court) to be stamped. Memoranda of certain appeals including Special Appeals must he stamped and must be rejected if they are not stamped under Section 4. Under this provision First Appeals from judgments of subordinate courts also must be stamped and must be rejected if they are not. Order 44 Rule 1, however, allows memoranda of First Appeals by paupers to be filed without being stamped at all. Section 4 of the C. P. C. provides that in the absence of any specific provision to the contrary nothing in the Code will limit or otherwise affect any special or local law in force at the time of its enactment.
The Court-tees Act was in force at the time of its enactment and though Section 4 required every memorandum of Special Appeal (excluding a memorandum of a Special Appeal from a judgment of a single judge in the exercise of the ordinary original civil jurisdiction) to be stamped but the provisions in Order 44 Rule 1 that an appellant may be allowed to file an appeal without paying any court fee on the memorandum of appeal is a specific provision to the contrary and, therefore, it will supersede the provision in Section 4 of the Court Fees Act. So in every case governed by Order 44 Rule 1 memorandum of appeal may be presented without being stamped notwithstanding the provisions of Section 4 of the Court-fees Act. The position of an appeal not governed by Order 44 Rule 1 is different; in that ease there is no provision in the Code contrary to that contained in Section 4 of the Court Fees Act and, therefore, Section 4 of the Court fees Act will prevail. We have found that Order 44 Rule 1 does not apply to certain Special Appeals such as the one before us. In respect of them there is no specific provision to the contrary within the meaning of Section 4 of the Code and, therefore, Section 4 of the Court Fees Act will prevail and court fee must be paid on each memorandum of appeal.
2. Sri K.B.L. Gour tried to get round Rule 10(2) of Ch. IX of Rules of Court by contending that a memorandum of appeal is 'duly stamped' when it is riled by a pauper who has been permitted to appeal as a pauper under Order 44 Rule 1. No memorandum that is not stamped can ever be said to be 'duly stamped'. A memorandum of appeal that does not require to be stamped cannot be said to be 'duly stamped' merely because of that fact; it remains unstamped. A memorandum filed by a paupor permitted to appeal as such is an unstamped memorandum and not a 'duly stamped' memorandum. Rule 10(2) of Ch. IX requires every memorandum of Special Appeal to be affixed with court-fee labels.
3. In the result, we hold that the applicant inthe instant case cannot be permitted to file an appeal as a pauper because Order 44 Rule 1 does not apply.The, application is dismissed.