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Hari Maharana and ors. Vs. Pranabandhu Maharana and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 3 of 1968
Judge
Reported inAIR1969Ori167; 35(1969)CLT327
ActsOrissa Court Fees Act, 1870 - Schedule - Article 17A
AppellantHari Maharana and ors.
RespondentPranabandhu Maharana and ors.
Appellant AdvocateH.G. Panda, Adv.
Respondent AdvocateGovt. Adv.
DispositionReference accepted
Cases ReferredChaitan Senapati v. Mani Bewa
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..........nos. 2, 5 and 15 in the partition suit o. s. no. 24/66 are the appellants, in the trial court, the suit was valued at rs. 7,434.00 for purposes of jurisdiction and the fixed court-fee of rs. 150-00 was paid. the appellants here have valued the appeal at rs. 3,800.00 for purposes of jurisdiction and paid the fixed court-fee of rs. 22.50. the stamp reporter raised the objection that in partition suits governed by article 17-a of schedule ii (orissa amendment) of the court-fees act the amount of court-fee will depend on the jurisdictional value in the suit and it is not open to appellants to reduce the jurisdictional value and pay the lower fixed court-fee. the taxing officer has agreed with the view of the stamp reporter, but as in another f. a. no. 104 of 1966 (orissa), the finding of the.....
Judgment:
ORDER

A. Misra, J.

1. On a reference by the Taxing Officer, this court-fee matter has come up before me as the Taxing Judge. Defendants Nos. 2, 5 and 15 in the partition suit O. S. No. 24/66 are the appellants, In the trial Court, the suit was valued at Rs. 7,434.00 for purposes of jurisdiction and the fixed court-fee of Rs. 150-00 was paid. The appellants here have valued the appeal at Rs. 3,800.00 for purposes of jurisdiction and paid the fixed court-fee of Rs. 22.50. The Stamp Reporter raised the objection that in partition suits governed by Article 17-A of Schedule II (Orissa amendment) of the Court-fees Act the amount of court-fee will depend on the jurisdictional value in the suit and it is not open to appellants to reduce the jurisdictional value and pay the lower fixed court-fee. The Taxing Officer has agreed with the view of the Stamp Reporter, but as in another F. A. No. 104 of 1966 (Orissa), the finding of the Registrar that in such a partition suit it is permissible in appeal to alter the valuation for purposes of jurisdiction, he has made this reference.

2. Mr. H.G. Panda, learned counsel appearing for the appellants contends that in the original suit 10.62 acres formed the subject-matter and the same was valued at Rs. 7,434.00. In appeal, his clients are limiting their challenge to the findings of the trial court only in respect of 5.10 acres of lands, and as such, the value of the appeal for purposes of jurisdiction has been limited to Rs. 3,800.00 in proportion to the extent of property in respect of which the findings of the trial court are challenged. Firstly, he contends that he is entitled to alter the valuation in appeal in view of the Division Bench decision in F.A. No. 104 of 1966 (Orissa). Secondly, he contends that on a proper interpretation of Article 17-A of Schedule II (Orissa amendment) it is open to appellants to value the appeal for purposes of jurisdiction separately in the appellate Court.

3. I am unable to agree with either of these contentions. No doubt, in F.A. No. 104 of 1966 (Orissa) the Division Bench accepted the finding of the Registrar that appellant is entitled to alter the valuation in appeal for purposes of jurisdiction. In that case, however, the point was not specifically urged nor a decision arrived at on interpretation of Article 17-A. That decision also was not on the basis of a reference Under Section 5 of the Court-fees Act. Therefore, acceptance of the finding of the Registrar by the Bench in that appeal in my opinion, cannot stand in the way of determining the present question on merits, particularly when this is a reference to the Taxing Judge Under Section 5 of the Court-fees Act,

4. Coming to the main point, it is not disputed by Mr. Panda that the proper provision which will govern the present case is Article 17-A of Schedule II as amended in Orissa, Referring to the original Article and comparing it with the language adopted in Article 17-A (Orissa amendment), Mr. Panda urges that the language adopted in the Orissa amendment in column 3 contemplates distinct valuation for purposes of jurisdiction in the appellate Court. According to him, while the language in Column 1 refers to 'plaint or memorandum of appeal in every suit,' the same is not repeated in Column 3. In other words, according to him, the words 'value for purposes of jurisdiction in column 3' would mean the value given in the appellate Court, where the question of court-fee relates to memorandum of appeal. While conceding that the decision of this Court reported in ILR (1951) Cut 111 = (AIR 1952 Orissa 113), Chaitan Senapati v. Mani Bewa, obviously is against the interpretation now sought to be put by Mr. Panda, he contends that the aforesaid aspect was not urged or considered in that decision. I am unable to agree with this ingenious distinction sought to be made. Column 3 of Article 17-A (Orissa Amendment) cannot be read disjunctively from column 1. Column 3 only provides the amount of fixed court-fee payable in respect of different jurisdictional value. It does not contemplate that the jurisdictional value referred to in Column 3 will be something different from what is indicated in column ]. Therefore, as has been held in ILR 1951 Cut 111 = (AIR 1952 Orissa 113) in a partition suit governed by Article 17-A, the memorandum of appeal is chargeable with the same court-fee as that on the plaint, the jurisdictional value being the same as in the suit.

5.Accordingly, I reject the contentions advanced for appellants and direct that the valuation be amended and deficit court-fee paid, as pointed out by the Stamp Reporter.


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