1. This is a reference by the Taxing Officer in regard to the court-fee payable on an appeal to this Court under Section 45, U.P. Encumbered Estates Act, against a simple money decree of a Special Judge, first grade, for Rs. 1,85,950-15-9. The appellant made an application under Section of the Act to the Collector and on reference of the application to the Special Judge and after his inquiry under Section 14 this decree has been passed under Sub-section (7) which states:
If the Special Judge finds that any amount is to the claimant he shall pass a simple money decree for such amount together with any costs which he may allow in respect of proceedings in his Court...together with pendente lite and future interest.... Such decree shall be deemed to a decree of a Civil Court of competent jurisdiction.
2. The decree is executable under the Act, and is sent to the Collector by the Special 1938 A/13 & 11 Judge for execution. The question at issue in the lower Court was the amount due from the appellants to respondent 1, and against the decree in favour of respondent 1, the appellants claim in appeal that nothing is due to respondent 1 from the appellants. The Taxing Officer considers that the appeal to this Court should bear a court-fee of an ad valorem amount in the manner in which an appeal from a simple money decree would bear a Court-fee. The appellants have only paid a fee of Rs. 10 claiming that the decree is not an ordinary decree, that it is not executable under the Civil Procedure Code but only under the special provisions of the Encumbered Estates Act, and that there-fore the provisions of the Court-fees Act applying to simple money decrees of a Civil Court are not applicable. The question is of very considerable importance as the difference in the amount of court-fee would be very large and it is probable that a large number of appeals of this nature will come before this Court. The Taxing Officer refers to two cases which the appellants rely on but neither of those cases which were decided by a Bench of this Court appears to me to cover the point. In view of the importance of the matter, I recommend that it should be laid before a Full Bench.
3. The question before us is whether the Court-fees on a memorandum of appeal should or should not be paid ad valorem. The appeal is one against a decree passed by the Special Judge under Section 14, United Provinces Encumbered Estates Act. Court-fees in this Court are paid under Section 4, Court-fees Act, which says that:
No document of any of the kinds specified in Schedule 1 or Schedule 2 to this Act annexed, as chargeable with fees, shall be filed...or shall be received...by a High Court; unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedule as the proper fee for such document.
4. There can be no doubt that the document with which we are dealing is a memorandum of appeal. The question then is whether it does or does not come within Article 1 of Schedule 1 of the Act. That Article says that court-fees in certain amounts shall be paid ad valorem on a memorandum of appeal (not otherwise provided for in the Act) presented to any Civil or Revenue Court except those mentioned in Section 3. Section 3 of the Act deals with High Courts acting on their Original Side and does not affect the question of court-fees payable on the present memorandum of appeal. It is obvious that the Court-fee must be paid ad valorem on this memorandum of appeal unless it is otherwise provided for in the Act. The only other articles under which it is possible to argue that this memorandum of appeal might be provided for are Articles 11 and 17 of Schedule 2. Article 11 cannot apply, because it provides for court-fees on a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree and in Section 14, United Provinces Encumbered Estates Act, it is specifically stated that the Special Judge shall pass a simple money decree for the amount which he finds due to the claimant and that such decree shall be deemed to be a decree by a Civil Court of competent jurisdiction.
5. It has been suggested that Article 17 of Schedule 2 applies because the suit if it can be called a suit in the Court of the Special Judge was one to obtain only a declaration that a certain amount of money was due. We do not think that there is any force in this argument. If the proceeding in the Court of the Special Judge is not a suit, then Article 17 of Schedule 2 cannot apply because that applies to a memorandum of appeal in certain suits. On the other hand, if the proceeding in the Court of the Special Judge is deemed to be a suit, then it must be a suit on the basis of a claim made by the debtor in the written statement for which provision is made in Section 9 of the Act and is a suit for a definite amount of money claimed by the creditor. It cannot be said that this is a suit to obtain a declaration only. Provision is made that the money shall be recovered in the particular ways specified in the Act.
6. It has been argued that the decree of the Special Judge cannot be executed in the ordinary way under the Code of Civil Procedure. It does not appear to us that that makes any difference. There are other decrees of a Civil Court which cannot be executed in the ordinary way but must be executed by Collectors under the provisions of the Code of Civil Procedure. The fact that they are executable in that way does not make them any less decrees of a Civil Court. The third argument is that the memorandum comes under Article 17 of Schedule 2 because it arises out of a suit where it is not possible to estimate at a money value the subject matter in dispute. It again seems to us that there is no force in this argument. We have already explained that this Article would not apply if the proceeding in the Court of the Special Judge were not a suit. We have also pointed out that if it were a suit, it would be a suit for the recovery of a specific sum of money claimed by the creditor. It is not therefore possible to hold that the money value of the suit is not capable of estimation. It is so capable to the nearest anna and pie because the claimant is claiming a definite sum.
7. We are satisfied that this memorandum] of appeal cannot come under the descriptions in Article 11 or Article 17 of Schedule 2, Court-fees Act, and therefore it must come under the description in Article 1 of Schedule 1 of the Act. The Court-fee is consequently payable ad valorem. It has been suggested that this will lead to great hardship to landlords who have come in under the provisions of the Encumbered Estates Act. That is a matter with which we are nod; concerned. There is a provision in Section 35 Court-fees Act, that the Local Government may remit or reduce the fees chargeable under the Act. The matter is entirely one for the Local Government and not one with which we are concerned. Our decision is that the court-fees payable on the memorandum of appeal are payable ad valorem under the provisions of Article 1 of Schedule 1 of the Act.