Mushtaq Ahmad, J.
1. This is an appeal under Section 6 (a), U. P. Court-fees Act against an order of the learned District Judge of Moradabad requiring the appellants to pay further court-feeon their memorandum of appeal filed before him. The appellants were co-debtors of the principal landlord-applicant in certain proceeding under the Encumbered Estates Act, Under Section 9 of the Act the learned Special Judge had determined the proportionate liabilities of the applicant. This determination was challenged in appeal by the appellants before the learned District Judge. Treating the appeal as one only against an order, the appellants had paid the usual court-fee.
2. The office reported that ad valorem court-fee was required, inasmuch as the appellants had sought the cancellation of the decrees which, rightly or wrongly, had been passed by the Special Judge. The learned District Judge agreed with this report, and ordered that the appellants should pay ad valorem court fee on the decrees which they wanted to avoid by filing the appeal. The present appeal is against that order.
3. The question as to what court-fee was in fact payable on the memorandum of appeal filed by the appellant in the lower appellate Court depended entirely on the nature of the order appealed against. There can be no doubt that the order in question was one determining the amount payable by the appellants to the creditors. The learned counsel for the appellants has argued that, even as an order determining this amount, it was only an order and nothing more. It was, he continued, not a decree or even an order having the force of a decree. The question whether the order was a decree or not would depend for its answer on a consideration of certain provisions of Section 9 and also of Section 11, Encumbered Estates Act. In the former section, under Clause (c) to Sub-section (5), it is provided that, in case no suit has already been filed by the creditor to recover the amount, he has to file a suit to recover the same as determined by the Special Judge under Sub-section (5) of that section, and that in a case where a creditor has already obtained a decree, he was to apply for execution of that decree, but that the amount recoverable would be what has already been determined by that Judge under the said sub-section. This means that a mere order determining the proportionate amount payable by the applicant, debtor and that payable by the non-applicant-debtor is not the final order, in the sense that, by executing the same, the creditor may recover the amount due to him straightway. He has further to have resource to an independent remedy provided in Clause (c), as mentioned above, having to resort to a different proceeding, in the one case, a suit, and in the other, an application for execution, as the case may be. The provision in Section 11 of the Act, which also has a bearing on this question, is contained in Sub-section (4) thereof. It provides that:
'Any order passed by the Special Judge under this section shall be deemed to be a decree of a civil Court of competent jurisdiction.'
4. By this provision, the Legislature expressly declared that an order determining the title of a claimant to a property under Section 11, Encumbered Estates Act, would have the effect of a decree of a competent civil Court. It is significant that no analogous provision is to be found in Section 9 of the Act. This discrimination observed by the Legislature could not have been without a meaning. One of the reasons for this might be that they had already provided that a determination under sub Section (5) of that section had to be followed by another proceedings, in one case a suit and in the other an application for execution, as we have already mentioned. There can, thus, be no doubt that an order merely determining the proportionate amount of a liability under Sub-section (5) of Section 9 is a mere order and not a decree, unlike what it is in the case of an order passed under Section 11 of the Act.
5. A number of cases have been cited before us by the learned counsel for the parties, and so far as the contention raised on behalf of the appellants is concerned, the position is, in our opinion, fully covered by the case of Bam Prasad v. Triloki Nath `. That was a case of an appeal from an order under Section 5 (1), U. P. Agriculturists' Belief Act. The question was with regard to the amount of court-fee payable on the appeal. That depended on whether the order under appeal was a decree or a mere order. The Bench held that it was a mere order. Their Lordships pointed out that the decree which was actually executable was the decree that had already been passed and that a mere order converting the same into an instalment decree would not amount to a fresh executable decree. The test laid down for the determination of the question whether an order claimed to be a decree was really so or not was whether it was executable as it stood. We think that the same position arises in the present case also, namely that a mere determination of the proportionate liability under Sub-section (5) of Section 9, Encumbered Estates Act is not a decree or even an order having the force of a decree. It had to be followed by another proceeding. That was to take the form of a suit in case no suit had already been filed and a decree obtained and to take the form of an application for execution where a decree had already been obtained.
6. On behalf of the respondents, two cases in the main have been cited before us, one was Raja Ram v. Ganga Bux Singh A. I. R.1946 Oudh 60 and the other Harendra Shankar v. Khiali Bam 1940 ALL. A. L. J. 689 (FB). In the former case, a perusal of the judgment would clearly show that the order against which the appeal in that case had been filed was assumed throughout to be a decree. It is true that the order appears to have been passed under Section 9, Encumbered Estates Act. But it is not clear whether it was passed at the very time when the Special Judge was passing a decree or decrees under Section 14 of the Act, and everybody assumed it to be immaterial whether the order determining the proportionate liability was to be taken as either under the one or under the other section. There is no doubt that it was assumed to be a decree. If this was so, it is obvious that the court-fee payable on the appeal was ad valorem, and it is not possible to deduce from the report of the judgment that the Court was taking the view that such court-fee was requisite, even if the order under appeal was a mere order and 'not a decree. The latter case was one in which the appeal had arisen out of certain proceedings under Section 33, U. P. Agriculturists' Belief Act. The main question with which their Lordships of the Full Bench were concerned was which of the two conflicting decisions, one by Bennet J. in Chaube Singh v. Har Prasad, P. A. No. 234 of 1936 and the other by Oollister and Bajpai JJ., Pahlad Singh v. Niadar Singh, 1938 ALL L.J. 708, represented the correct view. In the former, it had been held that, although ad valorem court-fee was payable on an appeal against a decree in a suit under Section 83, U. P. Agriculturists' Relief Act, no such fee was due on an appeal against a mere order fixing the amount payable to the creditor. In the latter case, the view taken had been that, whether the appeal was against the earlier order fixing such amount or against the decree finally terminating the proceedings under the said section, the court fee payable was ad valorem. The Full Bench in Harendra Shankar v. Khiali Bam, 1940 ALL L. J. 689 accepted the latter view, holding that in either case ad valorem court-fee was chargeable.
7. Learned counsel for the respondents seeks to draw an analogy between an order fixing the amount of the debt under Section 33, U. P. Agriculturists' Relief Act, and an order determining the amount of proportionate liability under Sub-section (5), Section 9. U. P. Encumbered Estates Act. He argues that the decision of the Full Bench lends material support to his contention that ad valorem court fee should have been paid in this case also. A reference to the judgment of their Lordships would clearly show that emphasis was laid on the actual nature of a suit under Section 33, U. P. Agriculturists' Relief Act. It was pointed out that, so far as the parties to such a suit were concerned, an order fixing the amount payable by the one to the other clearly came within the meaning of a 'decree' as defined in Section 2(2), Civil P. C. What is more important is that reliance was placed on the provisions of Section 7(iv)(b), Court fees Act, which prescribed a particular scale of court-fee in suits for accounts. These provisions do not appear to make any discrimination between an order fixing an amount and a decree embodying the said amount passed in a suit for rendition of accounts. In the presence of these specific provisions, it was not possible to hold that a court-fee less than what would be due on an ad valorem basis could be paid in an appeal against an order determining the amount of a debt in a suit for accounts under Section 33 of the said Act. By common consent, there are no similar provisions in the Court fees Act relating to an appeal against an order under Sub-section (5) of Section 9, U. P. Encumbered Estates Act, and we are left to the general provision of the law that, while a fixed court-fees is payable on an appeal against a mere order, court fee ad valorem is generally chargeable on an appeal against a decree.
8. In view of these considerations, we have come to the conclusion that the order of the lower appellate Court is not legally sustain able. The amount already paid by the appellants was sufficient under Article 11 to Schedule 2, Court fees Act, and there was no occasion to demand any higher sum on that account.
9. We accordingly allow this appeal, set aside the order of the lower appellate Court and send the case back for a decision of the appeal in that Court according to law. The appellants will be entitled to their costs in this Court.