Knox and Muhammad Rafiq, JJ.
1. Another question arises in connection with this second appeal. The appeal before us is an appeal against an order under Order XXXIV, Rule 5, of the Code of Civil Procedure. It was valued at Rs. 582-11-9 and was put in on a paper bearing a court fee stamp of Rs. 2. The office reported that the fee payable was Rs. 44-4-0 and that therefore the appellant had to pay a deficiency of Rs. 42-4-0. The appellant raised no objection and made good the deficiency. The stamp-officer of the Court then pointed out that for similar reasons the decree-holders, the respondents in this appeal, were liable to pay a court fee of Rs. 105, instead of the court fee of eight annas which they paid on their appeal in the court of the District Judge. There was, therefore, a deficiency of Rs. 104-8-0 due from them. The respondents contested this report, and the Judge of this Court, to whom a reference was made, and who happens to be the Taxing Judge of the Court, held that the matter was one for the Bench hearing the appeal. The learned vakil for the respondents contended before us that the fee which he had paid in the court of the District Judge was all that was required by law and there was no deficiency due from him. The question raised is not free from difficulty, and it will affect a large number of cases if this Court should hold that an appeal from an order absolute should bear the same fee as if it were an appeal from an original decree. The learned vakil asks us for time in which to prepare the case. We grant two weeks; but we think it would be well if we had another Judge to assist us in determining this question. We think that the learned Government Advocate should also appear in the interest of the revenue. We direct that these papers be laid before the Hon'ble the Chief Justice with a request that a third Judge should be added to the Bench for the determination of this question.
2. The case was then laid before Knox, Tudball and Rafiq, JJ.
3. Babu Sital Prasad Ghose, for the respondent:
4. The court is bound to make a final decree under Order XXXIV, Rule 5, if the provisions of the preliminary decree passed under Order XXXIV, Rule 4, are not complied with. So that the only matter which the court, upon an application under Order XXXIV, Rule 5, is called upon to decide, is whether there has or has not been such compliance. This is no more than what an executing Court has to do, and it is submitted that the final decree is an order within the meaning of section. 47 of the Code. It is not suggested that an application for a decree under Order XXXIV, Rule 5, must bear an ad valorem court fee, and there is no reason why, when such application is refused and an appeal is taken from that refusal, the memorandum of appeal should be stamped with an ad valorem court fee. Anyhow the Court Fees Act makes no distinction between preliminary and final decrees, and the word decree' used in that Act must bear the ordinary meaning given to that expression in the first part of the definition of the term in the Code of Civil Procedure. It is clear, therefore, that the court fee paid by the present respondent in the court of the District Judge was all that was required by law and there was no deficiency due from him.
5. The Government Advocate (Mr. W. Wallach), was not called upon to reply.
Knox Tudball and Muhammad Rafiq, JJ.
6. We have heard all that the learned vakil for the respondent can urge in support of his contention that he was only bound in the lower appellate court to pay a court fee of annas eight as though he were appealing from an order, instead of an ad valorem duty. Looking to the change which has been made by the Legislature in Order XXXIV, Rules 4 and 5, as compared with Sections 88 and 89 of the Transfer of Property Act, we have no doubt whatever that the court fee which ho should have paid was an ad valorem court fee. The Legislature has deliberately altered the words 'order absolute' and replaced them by the words 'final decree.' This is our answer to the question.