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Mst. Puinbasi Majhiani Vs. Shiba Bhue and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 107 of 1964
Judge
Reported inAIR1967Ori41; 33(1967)CLT13
ActsCourt Fees Act, 1870 - Schedule - Articles 11 and 17A; Court Fees (Amendment) Act, 1939; Succession Act, 1925 - Sections 295; Code of Civil Procedure (CPC) , 1908 - Sections 26 - Order 4, Rule 1
AppellantMst. Puinbasi Majhiani
RespondentShiba Bhue and anr.
Appellant AdvocateG.R. Rao and ;G. Narasimham, Advs.
Respondent AdvocateAdv. General
Cases ReferredAntala Gope v. Smt. Sarbo Gopain
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........is from an order inclusive of an order determining any question under s. 47 or s 144 of thecade of civil procedure, 5 of 1908 and is presented.(a)to any civil court the thana high court or to any revenue court or executive officer other than the highcourt or chief controlling revenue or executive authorityone rupee. (b)to a high court or chief commissioner or other chief controlling executive or revenue authorityfour rupees.article 17-a on which the learned advocate-general appearing for the state relies reads as follows:17.a plaint or memorandum of appeal in every suit where it is not possible to estimate at amoney value the subject-matter in dispute and which is not otherwise provided for by this act.(a)a revenue court in the district of ganjam or koraput.ten rupees. (b)any other.....
Judgment:
ORDER

S. Barman, J.

1. In this reference made by the Registrar the question is whether the court-fee on a memorandum of appeal from an order refusing to grant probate of a will in R. S. 15 of 1963 on the file of the Subordinate Judge, Bolangir, is payable under Article 11 or Article 17-A of schedule II of the Court Fees Act. The appellant has valued the appeal for the purpose of jurisdiction at Rs. 5,000 but paid court-fee of Rs. 6/- treating it as an appeal against an order under Article 11. The Stamp Reporter pointed out that the appeal is from a decree and the Court fee is Rs. 150/- as payable under Article 17-A and that accordingly the deficit of Rs. 144/- is realisable from the appellant. The appellant contested the stamp report before the Registrar stating that the order appealed against is not a decree and that the court-fee payable is not under Article 17-A.

2. Having regard to the position that the matter has assumed some general importance for the reasons stated by the Registrar he referred the matter to me as Taxing Judge for a decision on the point.

3. Article 11 on which the appellant relies is as follows:

11.Memorandum of appeal whenthe appeal is from an order inclusive of an order determining any question under S. 47 or S 144 of theCade of Civil Procedure, 5 of 1908 and is presented.

(a)to any Civil Court the thana High Court or to any Revenue Court or Executive Officer other than the HighCourt or Chief Controlling Revenue or Executive Authority

One rupee. (b)to a High Court or Chief Commissioner or Other Chief Controlling Executive or Revenue authorityFour rupees.

Article 17-A on which the learned Advocate-General appearing for the State relies reads as follows:

17.A Plaint or memorandum of appeal in every suit where it is not possible to estimate at amoney value the subject-matter in dispute and which is not otherwise provided for by this Act.

(a)A Revenue Court in the district of Ganjam or Koraput.

Ten rupees. (b)Any other Revenue Court or any Court of District Judge, Subordinate Judge or Munsif.

Fifteen rupees if the value for purposes of Jurisdiction does not exceed four thousand rupees.

One hundred rupees if such value exceeds 4 thousand rupees.

4. The main argument of the learned Advocate General in support of his point that this appeal is to be treated as an appeal from a decree and not from an order and as such Article 17-A will apply is this: Under Section 295 of the Succession Act, where there is contention between the parties, the proceedings should take the form of a suit according to the Civil Procedure Code; as soon as it becomes contentious, it is to be treated as a plaint in a suit, governed as far as practicable by the procedure under the Civil Procedure Code. Where there is a contention, the probate proceedings take the form of a suit. His submission is that after a proceeding, as in the present case, becomes contentious the objector becomes the defendant and the petitioner becomes the plaintiff and the proceeding assumes the character of a suit and a decree follows: therefore, an appeal from such a decree falls within Article 17-A.

5. In my opinion this argument overlooks the very spirit and language of Section 295 of the Succession Act which reads as follows:

'295. In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.'

The words 'as nearly as may be' in the section are not without significance. It is not that it becomes a suit but that after caveat is entered the proceeding shall be treated as if it was a suit That apart, the words 'form of a regular suit' in the section also support this view. The proceeding assumes the character of a suit and not that the proceeding is itself a suit. In my opinion, even where the probate proceedings become contentious, they are merely to assume the form of a regular suit though in reality the proceedings are not in the nature of a regular suit under the provisions of the Code of Civil Procedure and therefore there can be no decree; in such a case the Court-fee payable on the memorandum of appeal is not governed by Article 17-A. This view finds support in several decisions of other High Courts hereinafter discussed. It is to be noticed that the language of Section 295, Indian Succession Act is not precise enough to convert the present proceeding into a regular suit. Unless there is a suit as provided under the Civil Procedure Code there can be no decree, except in cases of certain orders which are expressly included in the definition of decree.

Section 26 of Civil Procedure Code provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. So a proceeding that does not commence with a plaint is not a suit. The word 'prescribed' used in the section means prescribed by rule. The word 'suit' ordinarily means and apart from the context must be taken to mean a Civil proceeding instituted by a plaint. The words 'or in such other manner as may be prescribed' are new. No other manner of instituting a suit has hitherto been prescribed. The Order 4, Rule 1 Civil Procedure Code, provided that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf; that every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable. Thus unless a proceeding starts with a plaint as such it is not a suit and accordingly an order in such a proceeding cannot be a decree within the meaning of the Civil Procedure Code.

6. The opening part of Article 17-A itself states that it applies only to 'plaint or memorandum of appeal in every suit'. It therefore applies only to suits instituted on plaints or appeals arising out of such suits. In the present case neither the proceedings can be said to be Instituted by a plaint nor can the appeal be said to arise out of any such suit.

Section 295 of the Succession Act has merely applied the procedure prescribed in the Civil Procedure Code for suits to proceedings mentioned therein. The application of the Civil Procedure Code is limited to the procedure to be followed in the course of the proceedings, and does not extend to the matter of court-fees payable under the Act on the petition before the proceedings start.

7. It was exactly on this reasoning that a Full Bench of the Allahabad High Court in Panzy Ferandas v. M. F. Queoros, AIR 1963 All. 153 held that Article 17 is not applicable. The Rajasthan High Court also expressed the same view holding that the Court-fee payable in such a case on a memorandum of appeal is governed by Article 11 (Mst. Bhonri v. Suwalal, AIR 1956 Raj. 119).

8. A recent decision of the Patna High Court in the context of an application for divorce and damages under Section 13 of the HinduMarriage Act held that a decree of divorce in such a proceeding cannot be treated as a decree in Section 2 of the Code of Civil Procedure and so the appeal preferred against such decree will not be treated as an appeal from an original decree; though the procedure to be adopted by the court in dealing with proceedings under the Hindu Marriage Act will be akin to that provided for the trial of suits in a Civil Court, that does not make the proceedings a suit or the application a plaint: Antala Gope v. Smt. Sarbo Gopain, AIR 1962 Pat. 489. The reasoning on which the Patna High Court found that a memorandum of appeal arising out of an order under Section 13 of the Hindu Marriage Act either granting a decree for divorce or refusing the same will be treated as an appeal contemplated under Article 11 is pari materia the same as that of the Full Bench of the Allahabad High Court and also the Rajasthan High Court cited above. The provisions of Sections 21 and 28 of the Hindu Marriage Act in the context of which the Patna High Court decided are these: Section 21 provides that -

'All proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908'

Section 23 provides that:

'All decrees and orders made by the Court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original civil jurisdiction are enforced and may be appealed from under any law for the time being in force.'

The purport and intention of these provisions is that though the procedure to be adopted by court in dealing with such proceedings under the Hindu Marriage Act is akin to that provided for the trial of suits in a civil court, that does not make the proceeding a suit or the application a plaint. These provisions are somewhat similar to the provisions of Section 295 of the Succession Act. In support of their view the Patna High Court made reference to some other statutes by way of analogy including the Provincial Insolvency Act and the Guardians and Wards Act.

9. In the ultimate analysis of the reasoning of these decisions, I am of the opinion that a proceeding not initially started by presentation of a plaint is not a suit though it may assume the form of a suit for certain purposes of procedure as discussed above. If in fact the intention of the Legislature was that when such a proceeding subsequently assumes the character of a suit it would also affect the question of court fee, then there would have been such specific provision to that effect in the statute itself. For instance, Section 47(2) of Civil Procedure Code provides that the court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of additional court-fees. It is significant that there is no corresponding provision regarding court-fees in Section 295 or the Indian Succession Act. All that Section 295 lays down is that when the proceeding becomes contentious it shall take, as nearly as may be, the form ofa regular suit according to the provisions of the Code of Civil Procedure. It is for this limited, purpose only that such a contentious cause will be treated as a suit. It makes no provision for payment of additional court fees.

10. In this view of the position in law I am of opinion that this case conies under Article 11 of Schedule II of the Court Fees Act.

11. The reference is answered accordingly.There will be no order for costs of this reference.


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