Prem Chand Jain, J.
1. Reference dated 28-9-1979 by Prem Chand Jain and D. S. Tewatia, JJ.) The question that falls for determination in this appeal may be stated thus:--
'What court-fee would be payable on the memorandum of appeal filed against e final decree passed in a redemption suit when an appeal filed against a preliminary decree, on which ad valorem court-fee has been paid, i, still pending decision?'
2. The learned single Judge, against whose judgment the present appeal under clause X of the Letters Patent has been filed, has on the basis of a Division Bench judgment of the Lahore High Court in Budhuram v. Niamat Rai AIR 1923 Lah 632, held that a fixed court-fee would be payable on such a memorandum of appeal.
3. Mr. M. L. Sarin, learned counsel appearing for the appellants, has challenged the correctness of the aforesaid finding of the learned single Judge by contending that an appeal is filed against e decree and that there is no provision either in the Code of Civil Procedure or in the Court-fees Act permitting affixation of a fixed court-fee on s memorandum of appeal filed against a final decree where an appeal against a preliminary decree is pending decision. The learned counsel also submitted that the view taken in Budhuram's case (supra) does not lay down the correct law and deserves to be re-considered.
4. On the other hand, Mr. A. N. Mittal, learned counsel for the respondents, reiterated the stand taken by him before the learned single Judge.
5. After giving our thoughtful consideration to the entire matter, we find that there is considerable force in the contention of the learned counsel for the appellants.
6. Before dealing with the question of court-fees, it would be essential to understand the scope of the word 'decree'. This expression has been defined in sub-section (2) of Section 2 of the Code of Civil Procedure, as follows:--
'Decree, means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include--
(a) any adjudication from which an appeal lies as an appeal from an order or
(b) any order of dismissal for default. Explanation--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.'
7. From the bare perusal of the aforesaid provisions, it is evident that preliminary decree also falls within the said definition. The decrees that are recognised under the Code, are preliminary decree, final decree, decree partly preliminary and partly final,. and order rejecting the plaint. Under the Code, there are classes of cases in which a preliminary decree required to be passed and a suit for redemption is one of them. In such a suit, there are two stage when a decree is passed, i.e., a preliminary decree and a final decree. A preliminary decree in a redemption suit is not a tentative decree, but decides conclusively so far as it deals with the matters concerning the passing of that decree. Thereafter a final decree is passed which again decides conclusively the matters raised therein. A party is bound to prefer an appeal, if it is aggrieved against a preliminary decree, otherwise, the matters decided therein cannot be agitated in an appeal preferred against the final decree. This position is quite evident from the provisions of Section 97 of the Code which provides that where any party aggrieved by a preliminary decree, does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
8. This section was enacted in the year 1908. Under the old Code of 1882, objections to the preliminary decree could be raised in the appeal against the final decree. Therefore, under the law, as it now stands, a party is required to fi1e an appeal from the preliminary decree and cannot wait to attack it in so appeal against the final decree. The subject matter of the appeal against the preliminary decree has to be different from that of the final decree Any point agitated in an appeal against a preliminary decree, cannot form a ground of attack in final decree. This position is abundantly clear from the judgment of the Supreme Court in Venkata Reddy v. Pothi Reddy, AIR 1963 SC 992, wherein at page 995, it has been observed thus:
'A preliminary decree passed, whether it is in a mortgage suit or a partition snit, i; not a tentative decree but must, in so far as the matters dealt with by it are concerned be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees, a preliminary decree and a final decree, the decree which would be executable would be the final decree. But the finally of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain type a should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civi1 procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded Prom disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree.'
Thus from the aforesaid discussion, it is evident that in a suit for redemption, a preliminary decree is distinct from a final decree and a party, if aggrieved from that decree, does not prefer an appeal., then the matters adjudicated therein cannot be attacked in appeal filed against the final decree.
9. Having arrived at the aforesaid conclusion, the next question that arises for determination is as to what court-fee would be payable on the two appeals i.e., one preferred against the preliminary decree and the other preferred against the final decree. It may be observed at the outset that the matter of the payment of the court fee is governed by the provisions of Court-fee Act and has to be decided strictly in accordance thereof. No other consideration can enter into the picture. If any exemption or credit can be claimed by any party; then the same has to be under some provisions of the said Act. There is n gainsaying that under the Court-fees Act, there is no provision which may warrant payment of fixed court-fee on an appeal from the final decree. The contention of Mr. Mittal, learned counsel for the respondents was that an appeal from a final decree is of a formal nature and generally does not contest anything beyond what is contested in the appeal from the preliminary decree, and in this situation, only fixed court-fee is payable on such an appeal.
10. The argument, on the face of it, appears to be untenable. As earlier observed, the matter of the payment of court-fee is strictly governed by the provisions of the Court-fees Act. If the real appeal is that which has been filed against the preliminary decree, then there is absolutely no need to file an appeal against the final decree, as in the event of the success of the appeal against the preliminary decree, the final decree even if passed, would automatically fall. But in case, some new matters have been adjudicated upon in the final decree, then an independent appeal would be required to be filed. In that event, it would become absolutely necessary to pay ad valorem court-fee on the memorandum of appeal. The two appeals which are filed against the preliminary end final decrees, have nothing common between them and have to be decided and adjudicated upon independent of each other. In matters of the payment of the court-fee hardship or any ethical consideration has, never crept in. The view, which we are inclined to take, finds full support from the judgment of the Madras High Court in Kothandaraman v. Collector of Chingelput District, AIR 1953 Mad 415 and of Patna High Court in Smt. Kausalya Debi v. Kauleshwar Singh, AIR 1947 Pat 113. But the Division Bench judgment in Budhuram's case (supra) has taken a contrary view. Hence, it has become necessary to refer this matter to a larger Bench for reconsideration of the view taken in Budhuram's case (supra). Consequently, we direct that papers of this case be laid before the learned Chief Justice for constituting a larger Bench.
Prem Chand Jain, Ag, C. J.
11. This judgment of ours may be read in continuation of the order of reference dated September 28, 1979.
12. While dealing with the matter, detailed reasons have been given in the referring order for coming to the conclusion that ad valorem court-fee would be payable on a memorandum of appeal filed against the final decree passed in a redemption suit even if an appeal against the preliminary decree is still pending decision. As a different view had been taken in Budhuram v. Niamat Rai, AIR 1923 Lah 632, it had become necessary to get the matter decided by a larger Bench and that is how we are seized of the matter.
13. We have heard the learned counsel for the parties. No new argument has been advanced and those very points were put forth which have been considered at length in the referring order. For the detailed reasons given in the referring order, we find ourselves unable to agree with the view taken in Budhuram's case and hold that ad valorem court-fee would be payable on the memorandum of appeal filed against a final decree passed in a redemption suit even if an appeal against a preliminary decree is pending on which ad valorem court-fee has already been paid.
14. In view of the aforesaid answer we show the appeal and set aside for judgment of the learned single Judge in this respect. The defendant-appellants are granted three months' time to make up the deficiency in the court-fee. If deficiency in the court-fee is not made good within the aforesaid period, then the appeal of the defendants shall stand dismissed. In the circumstances of the case, we make no order as to costs.
D.S. Tewatia, J.
15. I agree.
J.M. Tandon, J.
16. I agree.
17. Appeal allowed.