1. The question for decision in this reference is whether an appeal from an order passed on an application for restitution under Section 144 of the Civil Procedure Code requires to be stamped ad valorem under Article 1 Schedule 1 of the Court Fees Act as an appeal from a decree, or can be filed as an appeal from an order in execution on a Court-fee of Rs. 2. The suit out of which the reference arises was one claiming a declaration that the plaintiff was an owner in possession of a house which had been sold in execution and bought by the defendant-appellant. The first Court dismissed the suit. In appeal the suit was decreed for a one-third share in the house. The defendant had obtained possession of the entire house under the Trial Court's decree. The order under appeal has granted the plaintiff possession of a one-third in the house by way of restitution. The appellant's case is that the plaintiff could only obtain possession of his one-third share by means of a suit for partition.
2. The question of law does not admit of any doubt. Orders under Sections 47 and 144 are expressly declared to be decrees by Section 2 of the Code. In the absence of any provision to the contrary appeals from decrees require to be stamped ad valorem. The fee payable on appeals under Section 47 would be ad valorem, but that it has been specially reduced by the Governor in Council by Notification No. 1231 VII of the 11th October 1923 under the powers conferred by Section 35 of the Court Fees Act as amended by the Devolution Act of 1920. No similar reduction has been made in the case of appeals under Section 144.
3. In order to claim exemption from an ad valorem fee the objector is compelled to argue that all orders under Section 144 are orders in execution falling also under Section 47. There was at one time some difference of opinion even in this Court as to whether orders under Section 144 were to be treated as orders in execution, and the objector is able to cite one decision, Gokal Prasad v. Ram Devi 63 Ind. Cas. 513 : 19 A.L.J. 771 : 3 U.P.L.R. (A.) 126, in his favour, but the opposite view is now generally accepted and has been adopted by this Court in two cases, Jiwa Ram v. Nand Ram 66 Ind. Cas. 114 : 20 A.L.J. 226 : 44 A. 407 : (1922) A.I.R. (A.) 223, and Brij Lal v. Damodar Das 66 Ind. Cas. 515 : 20 A.L.J. 458 : 4 U.P.L.R. (A.) 74; (1922) A.I.R. (A.) 238 : 44 A. 555, and by the Patna High Court in an elaborate Full Bench decision in Balmilkanda, Marwari v. Basanta Kumari Dasi 78 Ind. Cas. 200 : 3 Pat. 371; (1924) Pat. 33 : 5 P.L.T. 145. The question has usually arisen with reference to limitation whether an application would be barred if it falls under Article 181 of the Limitation Act but in time if it can be traced as an application for the execution of a decree under Article 182. The principle of these decisions is equally applicable to the question of Court fees.
4. An application under Section 144 is no doubt one which carries out the intention of the Appellate Court's decree, but it does not directly execute that decree. What it does is to undo ah execution wrongly granted by the Court below. In this case the High Court's decree was a declaratory and could only have been executed in respect of costs. The appellant must, therefore, stamp his appeal ad valorem. As only one-third of the house is really in dispute and not the entire house, he asks leave to amend his valuation so as to correspond with the matter in dispute. He is permitted to do this. The Court fee on the amended valuation (the value of one-third of the house) must be made good within two months of this date, failing which the appeal will be put up for orders of rejection.
5. It is unlikely that the omission of orders under Section 144 from the notification referred to above was due to deliberate intention. The exemption of appeals 'under Section 47 from an ad valorem fee dates back to a time when the Code of 1882 was in force. Under that Code, Section 583, an application by way of restitution was treated as a proceeding in execution and there was no need for a separate notification under the section corresponding to the present Section 144. It is probable that if the matter is brought to the notice of Government, Government will not consider it desirable to impose an ad valorem fee on a party who is merely asking the Court to right a wrong unintentionally done by the Court itself. I direct that a copy of this judgment be forwarded to Government with the suggestion that the provisions of paragraph (4) of the notification should be extended to appeals from orders under Section 144.