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Madho Das Vs. Ahmad Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All565
AppellantMadho Das
RespondentAhmad Khan
Excerpt:
civil procedure code, sections 322b, 322d - dispute as to extent of judgment-debtor's liability to claim--appeal from order disposing of dispute--nature of appeal--act vii of 1870 (court fees act), schedule ii, no. 11. - .....section 322b 'shall, as between the parties thereto, have the force of, and be appealable as, a decree.' the appeal before us, therefore,' is an appeal from a decision which is declared to have the force of a decree and to be appealable as such, and it falls directly within the exception of article 11 of scheduled ii of the court-fees act above-mentioned. it should, therefore, in my opinion, have been preferred upon the stamp provided for appeals from decrees, and, being insufficiently stamped, we cannot entertain it. i am aware that in taking this view, i have the authority of turner, c.j., srinivasa ayyangar v. peria tambi nayakar i.l.r. 4 mad. 420 to the contrary; but i regret i am unable to accept it. with deference to that learned judge, i cannot help thinking that his attention.....
Judgment:

Straight, J.

1. It will be convenient, in order to make the question of law raised for our decision clear, to state the following facts: A money decree was obtained against the appellant Ahmad Khan, and it was transferred to the Collector under the rules of 1880, prepared in pursuance of Section 320 of the Civil Procedure Code. The Collector thereupon issued notices in manner provided by Section 322 A, and thereupon the respondent Madho Das submitted a claim showing that Ahmad Khan was indebted to him in an aggregate amount of Rs. 13,044-4-6 due in respect of an hypothecation bond and two hundis. Ahmad Khan disputed the accuracy of the amount of this demand, alleging, among other matters, that he had made certain payments for which he had not been given credit, that the conditions of the bond as to payment of interest on default were penal, and that no interest was recoverable in respect of the hundis after due date. A dispute thus having arisen, within the meaning of the 3rd paragraph of Section 322 B, the Collector struck certain issues, and submitted them as therein provided to the Judge for his determination. That officer dealing with the matter remarks: 'These were virtually the issues of the Civil Court for some thousands of rupees.' He further, in accordance with findings recorded by his predecessor in office on the subject, declared that the bond should bear interest at the given rate or rates and the same with regard to the hundis; and he forwarded to the Collector a statement of the accounts as embodying his decision. Ahmad Khan, being injuriously affected by this decision, now appeals, as from a miscellaneous order, on various grounds, and a preliminary objection is taken by the respondent to the hearing of the appeal, on the ground that, looking to the terms of Section 322 D, it should have been presented as from a decree in a suit upon an ad valorem stamp, and not as an appeal from an order on a Rs. 2 stamp. I think this contention is a sound one and must prevail. By Article 11 of Scheduled ii of the Court Fees Act, it is provided that the stamp payable in respect of a memorandum of appeal to a High Court, 'when the appeal is not from an order respecting a plaint or from a decree or order having the force of a decree' shall be two rupees. Now, Section 322 D of the Procedure Code explicitly enacts that the decision of a dispute under Section 322B 'shall, as between the parties thereto, have the force of, and be appealable as, a decree.' The appeal before us, therefore,' is an appeal from a decision which is declared to have the force of a decree and to be appealable as such, and it falls directly within the exception of Article 11 of Scheduled ii of the Court-Fees Act above-mentioned. It should, therefore, in my opinion, have been preferred upon the stamp provided for appeals from decrees, and, being insufficiently stamped, we cannot entertain it. I am aware that in taking this view, I have the authority of Turner, C.J., Srinivasa Ayyangar v. Peria Tambi Nayakar I.L.R. 4 Mad. 420 to the contrary; but I regret I am unable to accept it. With deference to that learned Judge, I cannot help thinking that his attention was not directed to the article of the Court-Fees Act, which, according to my view, determines the question. It seems to me that, looking to the nature of the proceedings to be held under Section 323B for the investigation of the nature and extent of decrees and claims, and the determination of the priorities of such decrees and claims, it was intended that those decree-holders or claimants, who chose to submit their decrees or claims to the Collector pursuant to Section 322A, should, when a dispute arises of the kind mentioned in Section 322B, be bound, if it is referred for decision to the Civil Court, by the decision of such Civil Court, as by a decree in a suit; moreover, it may be remarked that this decision might, as in the case now before us, often determine very important questions, the investigation of which would require the bestowal of much time and labour by the Civil Court. In view of this state of things, it does not appear to me to be unusual or unwarrantable that appeals from such a decision should be held to require an ad valorem stamp. The memorandum of appeal must be returned to the appellant in order that he may supply the requisite stamp-paper within one month from this order.

Brodhurst, J.

2. I concur.


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