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Mohammad Iltifat HusaIn Vs. Alim-un-nissa and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in47Ind.Cas.561
AppellantMohammad Iltifat Husain
RespondentAlim-un-nissa and ors.
Cases ReferredTajammul Husain Khan v. Muhammad Husain Khan
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 6, order refusing to pass decree under, whether decree - court-fee on appeal, calculation of--court fees act (vii of 1870), schedule i, article 1. - .....upon the value' of the subject-matter of the appeal. the application was for a decree under order xxxiv, rule 6, made in the original mortgage suit. the application, of course, could be made on an s-anna stamp, but the question is what should the fee be which either side would have to pay if they were dissatisfied with the ruling of the court to which the application was made. in. the present case the court made an order dismissing the application for a decree under order xxxiv, rule 6. in the case of tajammul husain khan v. muhammad husain khan 35 ind. cas. 158 : 14 a.l.j. 328. mr. justice tudball held that the defendant against whom a decree under order xxxiv, rule 6, had been made was obliged to pay an ad valorem court-fee on the decree which had been made against him. the learned.....
Judgment:
ORDER

1. A report has been submitted by the office that the appellant was. liable for additional Court-fees in the lower Appellate Court calculated upon the value' of the subject-matter of the appeal. The application was for a decree under Order XXXIV, Rule 6, made in the original mortgage suit. The application, of course, could be made on an S-anna stamp, but the question is what should the fee be which either side would have to pay if they were dissatisfied with the ruling of the Court to which the application was made. In. the present case the Court made an order dismissing the application for a decree under Order XXXIV, Rule 6. In the case of Tajammul Husain Khan v. Muhammad Husain Khan 35 Ind. Cas. 158 : 14 A.L.J. 328. Mr. Justice Tudball held that the defendant against whom a decree under Order XXXIV, Rule 6, had been made was obliged to pay an ad valorem Court-fee on the decree which had been made against him. The learned Judge was of opinion that the decision appealed against was dearly a 'decree' within the meaning of the Code of Civil Procedure. We think that the view taken by Mr. Justice Tudball was correct. The only difference between that case and the present is that the Court of first instance, instead of granting a decree under Order XAXIV, Rule 6, refused to make such decree. We think that an order refusing to make a decree under Order XXXIV, Rule 6, must be regarded as a 'decree' within the meaning of the definition of that term in the Code of Civil Procedure. We think that the report of the office as to the liability of the appellant for payment of ad valorem Court-fees in the first- appeal was correct and that the amount must be paid by the appellant.


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