S.N. Andley, J.
(1) The respondent has made this application in the appeal contending that there is no properly constituted memorandum of appeal as proper court fee has not been paid and the failure of the appellant to pay proper court fee has resulted in the appeal having become time-barred. The appellant contends that the appeal is under section 10 of the Delhi High Court Act, 1966 and the contentions of the respondent are not legally maintainable.
(2) It is noticeable that the respondent in his application, has not indicated the particular provision in the Court Fees Act under which court fee is payable. All that has been stated is that the appeal is 'from a decree or at least an order having the force of a decree. In both cases, ad valorem court fee on the value of the suit in the original Court is payable on the memorandum of appeal.' The respondent's contention, thereforee, appears to be that the same court fee should have been paid on this memorandum of appeal under Schedule I Article 1 of the Court Fees Act as was paid by the appellant on the suit filed by him. The contention of the appellant is that the memorandum of appeal bears court fee under Schedule Ii Article 11 of the Court Fees Act as the appeal is not from a decree or an order having the force of a decree.
(3) The suit. Suit No. 32 of 1967, was filed by the appellant against the respondent for specific performance of an agreement whereby the respondent had contracted to sell plot No. 53, Friends Colony, New Delhi, to the appellant in consideration of an amount of Rs. 3,95,000.00. Court fee on the suit was paid ad valorem on Rs. 3,95,000.00. A decree was passed in this suit in favor of the appellant on April 18, 1968 by Hardy J. for specific performance of the said agreement and four months' time was given to the appellant within which he was required to deposit in Court a sum of Rs. 3,55,000.00, being the balance of the purchase price after adjusting the earnest money of Rs. 40,000.00 and on such deposit being made the respondent was to execute the necessary sale-deed and get the same registered in favor of the appellant. Time for making the deposit was extended by a further three weeks' by an order dated August 22, 1968 passed by Kapur J. The appellant. however, failed to make the deposit even during the extended time.
(4) Thereupon, the respondent filed an application, I.A. 1770 of 1968, under section 28 of the Specific Relief Act, 1963 in the said suit. By this application, the respondent prayed (1) for the rescission of the agreement to sell; (2) for restoration of possession of the and in dispute together with the structure standing thereon; (3) for Rs. 1,80,000.00 being the benefit alleged to have been derived by the appellant by having been in possession of the property calculated at the rate of Rs. 4,500.00 per month up to the date of the filing of the application and (4) for interest on Rs. 3,55,000.00 which would have been earned by the Respondent 1f the amount had been paid to him in accordance with the agreement amounting to Rs. 1,40,000.00. It was further prayed that the sum of Rs. 40,000.00 which had been paid by the appellant as earnest money should not be allowed to be refunded. Several issues were framed on this application. The learned Single Judge (P. N. Khanna J. passed the order under appeal to the following effect:-
(1)The agreement of sale was rescinded altogether; (2) the appellant was ordered to restore possession of the plot of land together with the buildings thereon to the respondent within two months from the date of the order; (3) the appellant was to pay to the respondent by way of rents and profits which had accrued and may accrue in respect of the property, an amount calculated at the rate of Rs. 4,500.00 per month from the date on which possession was obtained by him (June 1, 1965) until possession of the property was actually handed over and restored to the respondent; (4) the respondent was directed to refund to the appellant the earnest money amounting to Rs. 40,000.00 and further pay a sum of Rs. 2,50,000.00 as the value of the benefit received by him in the shape of the building constructed by the appellant on the land; and (5) payments were to be made by the parties within 30 days of the date of delivery of possession by the appellant to the respondent after adjustment of the amounts that may be due from one party to the other.
(5) SUB-SECTION (1) of section 28 of the Specific Relief Act, 1963; provides that where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or Lesser may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether as the justice of the case may require. It is, thereforee, clear that the application for rescission is to be made in the suit in which the decree was made and the adjudication by the Court on the application is described as an 'order'.
(6) Under sub-section (2) of the said section, the Court shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or Lesser, and it may direct payment to the vendor or Lesser of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or Lesser, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.
(7) SUB-SECTION (4) of this section provides that no separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, leaser or lessee, as the case may be.
(8) It is the common case of the parties that the order appealed against is a 'judgment''within the meaning of sub-section (1) of section 10 of the Delhi High Court Act, 1966 and it is under provision that the present appeal has been filed. The controversy centres round the question whether this judgment is a 'decree' or 'an order having the force of a decree.'
(9) The respondent relies upon a Full Bench decision of this Court reported in : AIR1969Delhi351 in re: Begum Aftab Zamani and another v. Lal Chand Khanna and others for the contention that the judgment under appeal conclusively determines the rights of the parties with regard to the matters in controversy in the suit and embodies in itself the formal expression of the adjudication & is, thereforee, a decree which is excluded from Article 11, Schedule Ii and falls within the perview of Schedule I, Article 1 of the Court Fees Act. In the Full Bench case, the judgment had been delivered in a suit for money. A memorandum of appeal was filed bearing court fee under Article 11 of Schedule Ii to the Court Fees Act. On an objection being raised that the memorandum of appeal should have borne court fee ad valorem under Article 1, Schedule I to the Court Fees Act, it was contended that inasmuch as a decree had not been drawn up following upon the judgment. Article 1, Schedule I to the Court Fees Act was not applicable and the memorandum of appeal would attract court fee only under Article 11, Schedule II. This contention was repelled and it was observed :-
'FORthe purpose of court-fee also, thereforee, the Court will have to consider in each case whether the judgment falls within the contemplation of Article 11, Schedule Ii because of its not amounting to a decree in the sense of finally disposing of a suit or an order having the force of a decree or whether it is a judgment which, without so amounting, otherwise materially affects the rights of the parties so as to give rise to a right of appeal under section 10 of the Act.'
'INthe present case, the judgment has indisputably disposed of the suit finally, with the result that nothing more remains to be done in the trial of the suit. Whether a decree is also to be framed in agreement with the judgment under the Civil Procedure Code is, in our opinion, immaterial because the Act does not take notice of decrees and in terms it provides for appeals only from judgments. The judgment under appeal, however, conclusively determines the rights of the parties with regard to the matters in controversy in the suit and it embodies in itself the formal expression of the adjucation. ............... .The Act, it may be remembered, does not define either 'judgment or 'decree'. It merely makes the judgment appealable under section 10. To be appealable, as hereinbefore discussed, the judgment broadly stated must be more than mere statement given by the Judge of the grounds of a decree or order; in other words: it must contain or embody a decision on a dispute affecting merits as well.'
(10) Holding that the judgment contained a decision on a dispute affecting merits and conclusively determined the rights of the parties with regard to the matters in controversy in the suit, the Full Bench held that the memorandum of appeal would attract court fee ad valorem under Schedule I, Article 1.
(11) The contention of the appellant is that the order appealed against is not a judgment in the suit but is a judgment upon the application filed after the suit had already been disposed of by a decree for specific performance and would be only a judgment disposing of the application under section 28 of the Specific Relief Act, 1963.
(12) In so far as a memorandum of appeal is concerned, Article 1, Schedule I of the Court Fees Act will be attracted only if court fee payable on any particular memorandum of appeal is not otherwise provided for in the Court Fees Act. Schedule Ii to the Court Fees Act provides for fixed court fee on a variety of memoranda of appeal in Articles 4,5,11,17,20 and 21. The present memorandum of appeal is not such as is contemplated by Articles 4, 5, 20 or 21.
(13) Nor can it be said to be a memorandum of appeal falling under Article 17 because the judgment under appeal was not given in any of the suits contemplated by this Article. The question, thereforee, is whether the present memorandum of appeal falls under Article 11 of Schedule Ii, as contended by the appellant, which provides for a memorandum of appeal when the appeal is not from a decree or an order having the force of a decree.
(14) The order under appeal is undoubtedly a judgment within the meaning of section 2(9) of the Code of Civil Procedure as it contains the statement of the grounds. But such a statement can be of the grounds of a decree or of an order. According to S. 2(14) of the Code an order means the formal expression of any decision of a Civil Court which is not a decree while according to section 2(2) of the Code, a decree means the formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. There is a clear distinction in the Code between a decree and an order. It is significant that section 28 of the Specific Relief Act, 1963 contemplates the making of an order and we think we would be justified in holding that the word 'order' has been used in this section in contradistinction to a decree. The order or judgment under appeal does not dispose of the controversies between the parties which were raised in the suit but only the controversies which had been raised in the application under section 28 of the Specific Relief Act, 1963 filed after the suit had been finally disposed of by the decree for specific performance. In our opinion, the order under appeal, even though it is undoubtedly a judgment , is not a decree and no assistance can be derived by the respondent from the aforesaid Full Bench decision of this Court.
(15) Then, Article 11, Schedule Ii of the Court Fees Act would be attracted in case of an appeal against any order if such order does not have the force of a decree. Even though an order may be enforced in the same manner as a decree it will not be an order having the force of a decree unless such force is given to it by the statute. In Air 1945 lah 146 in re: Official Liquidator, Universal Bank, Ltd. (in liquidation) v. M. U. Qureshi, it was observed:-
'THEREis a distinction, both real and practical, and. not merely artificial between an order that has by statute the force of a decree and an order that may by statute been forced in the same manner as a decree. An order that is given by statute the force of a decree is an order that proprio vigore stands as a decree whatever the consequences, whereas an order that may by statute be enforced as a decree is an order that may be of little or no effect, proprio vigore, and only becomes effective, when executed by the method by which a decree may be executed. In other words, it is a mere shadow unless and until life is infused into it by an application for execution. It is a well recognised rule of interpretation of statutes, that there is a presumption that the Legislature means different things by different phraseology; and when it describes an order as having the force of a decree it must mean something different from the description of an order which may be enforced in the same manner as a decree.'
(16) The order which the Lahore Full Bench was considering was an order under section 199 of the Companies Act, 1913. It was undoubtedly a judgment and even executable even so it was held that it was not an order having the force of a decree within the meaning of Schedule Ii Article 11 and court fee paid under this Article on the memorandum of appeal was held to be properly paid. To the same effect are the cases reported in (1961) 21 Com CAS 77 in re-.Vastu lal V. Official Liquidator, Pareek Commerial Bank Ltd. and Air 1946 Oudh 264 in re: Isha Hussain v. Bakhshish Hussain and others.
(17) The view of the Lahore Full Bench is stated to have been accepted in a Full Bench decision of the Allahabad High Court reported in : AIR1963All153 in re : Mrs. Pangy Fernnidag v. Mrs. M. F. Oucoros and others. This was a case where letters of administration were granted to the applicant. The contestant filed an appeal and paid the fixed court fee on the memorandum of appeal under Schedule Ii, Article 11 of the Court Fees, Act. The learned Judges, however, observed :
'THEcrucial test, thereforee, for determining the question whether an order has the force of a decree is not whether it is executable as a decree but whether it finally adjudicates on the rights that are in controversy in the proceedings before the Court concerned.'
(18) It, thereforee, appears that learned Judges did not accept the view expressed in the Lahore Full Bench that an order will have the force of a decree only when such force is infused into it by the statute. On the basis of the above quoted observations, the learned Judges of the Allahabad Full Bench held that the order granting letters of administration should be considered to be an order having the force of a decree and Article 11 of Schedule Ii would not apply. With respect, we prefer the view expressed in the Lahore Full Bench and the other cases noted earlier that it is only an order that is given by statute the force of a decree that can be said to be an order that proprio vigore stands as a decree whatever the consequences.
(19) Strong reliance has been placed by the respondent on the decision of Hegde J. (as his Lordship then was) reported in 1960 Mysore 175 in re : Haravan Gangadhar Deshpande and others v. Rongo Krishan Dixil. The learned Judge was dealing with the question of court fee payable on the memorandum of appeal filed against an order on an application under section 35(c) of the Specific Relief Act, 1877. He observed:
'THEtrue effect of S. 35(c) Specific Relief Act Js that the Court which passed the decree specific performance, is given power to rescind the contract and consequently set aside the decree which it had passed earlier, if the successful plaintiff fails to comply with the terms of the decree. The resulting position is that a suit, which was once decreed, can be dismissed again if the court thinks fit to do so. plaintiff, thereforee, who appeals against the dismissal of his suit, on his failure to comply with the decree, will have to pay court-fee on the very basis on which the courtfee had been paid on the plaint, and not under Art. 17.3) of Sch. Ii, Court-fees Act.'
(20) We do not find it possible to agree that an order under section 28 of the Specific Relief Act, 1963 would have the effect of dismissing the suit for specific performance which had been decreed Under this section even upon rescission of the contract, the purchaser or lessee who was the plaintiff in the suit may obtain the the refund of any sum paid by him as earnest money or deposit in connection with the contract or any other monies that may b due to him. Order for such a refund could not b made upon an application under section 35(c) of the Specific Relief Act, 1877. The result of an order under section 28 of the Specific Relief Act, 1963 is merely to render the decree for specific performance ineffective or inexecutable. The order on such a application, cannot, even in the case of rescission of the agreement to sell, amount to a dismissal of the suit for specific performance This case can, thereforee, be of no assistance to the respondent Section 28 of the Specific Relief Act, 1963 does not contain the words 'having the force of a decree' after the word 'order We cannot add words to the section. After arguments in the matter were concluded, we have seen the judgment of the Suprerme Court dated March 30, 1970 in Civil Appeal No. 2528 of 1969 re : Sahadu Gangaram Bhagada v. Special Deputy Collector Ahmednagar and another. In this case an award had been made by the arbitrator under section 8(1) of the Requisitioning and Acquisition of Immovable Property Act, 1952. Against the award, the Special Deputy Collector, Ahmednagar, filed an appeal in the High Court of Maharashtra and Bhagade filed cross-objections whereon he affixed a court fee of Rs. 5.00 which was payable under Article 13 of Schedule If of the Bombay Court-fee Act, 1959 which is equivalent to Article 11 of Schedule Ii of the Court Fees Act, 1870. It was contended by. the Special Deputy Collector that ad valorem court fee was payable either under Article I or Article 3 of Schedule I of the Bombay Court Fee Act. The provisions of section 7(1) of the Bombay Court Fee Act which are similar to section 8 of the Court-fee Act, 1870 were considered This section provides that the amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purposes shall be computed according to the difference between the amount awarded and the amount claimed by the appellant. The Supreme Court held that this provision related to the computation of the court fee payable on ad valorem basis and could have no connection with any Article providing for the payment of fixed court fee and, thereforee, the computation of court fee payable could be only under Schedule 1. The Supreme Court further repelled the contention that before section 7(1) of the Bombay Court-fee Act be attracted to an appeal, the order under appeal must have the force of a decree and observed:-
'THEsection does not say so. It would not, thereforee, be proper on our part to add the words 'having the force of a decree' after the word 'order' in s. 7(1). In fact that section is so plain as not to require any interpretation.'
(21) For the same reason we cannot add the words 'having the force of a decree' after the word 'order' in section 28 of the Specific Relief Act, 1963. We are, thereforee, of the view that unless the statute says so, an order cannot he said to have the force of a decree.
(22) The order or judgment under appeal not being against either a decree or an order having the force of a decree, Article 11 of Schedule Ii of the Court Fees Act, 187 would clearly apply and we have to hold that the memorandum of appeal bears proper court fee.
(23) C. M. No. 288 of 1970 is, thereforee, dismissed with costs. Counsel's fee is assessed at Rs. 250.00.