1. A question of court-fee falls for consideration before us. The respondent in (sic) O. P. (H.M.A.) 84 of 1977 filed under Section 28 of the Hindu Marriage Act, 1955 is the appellant. Court-fee of Rs. 10/-was paid under Schedule II-3 (iii) (A) (1) (b) of the Kerala Court-fees and Suits Valuation Act, for short, the Act. (On the appellant's contention the proper court-fee will be Rs. 5/-). The Taxing Officer has objected to the court-fee paid. His stand is that the appeal falls under Article 1(vi) read with, Section 52 of the Act since the order under appeal has the force of a decree.
2. The appellant's counsel Mr. Moosa took us through some of the entries in Schedule II of the Act and contrasted it with the entry relating to the Hindu Marriage Act. Article 1(ii), (iii) and (iv) prescribe court-fee for petitions, claims or memorandum of appeal while Schedule II (1) (vi) prescribe court-fee for petitions alone. This provision is silent about the court-fee on memorandum of appeal. He submits that the court-fee payable in the appeal is governed by the residuary clause contained in Article 3(iii)(A)(1)(b). This plea is met by the Government Pleader with the submission that an order in a petition under the Hindu Marriage Act is a decree and when there is no specific provision for court-fee, the general, rule should apply, which is what is laid down in Section 52 of the Act. If this section applies, court-fee paid in the Court below should be the fee payable in appeal also. The appellant's counsel submitted that unless the order in question answered to all the requirements of a decree as laid down in Section 2(2) of the Code of Civil Procedure Section 52 could not be invoked. It is further argued that Section 52 applies only to cases where court-fee varies with the subject-matter of the lis and not where the court-fee is fixed irrespective of the subject-matter.
3. A similar question was considered by another Division Bench of this Court in another M. F. A. (Unnumbered), later numbered as M. F. A. 370 of 1980. The same plea as is now put forward was repelled and the appellant there was directed to pay in appeal the same court-fee that was paid in the O. P.
4. Counsel for the appellant referred us to a Division Bench decision of this Court reported in Devassia v. State of Kerala, (1965 Ker LT 69). That was a case which related to the sufficiency of the fee paid in a writ appeal filed under Section 5 of the High Court Act. This decision was noted by the Division Bench in the aforementioned M. F. A. Viswanatha Iyer J., who spoke for the Bench, did not agree with the observations in 1965 Ker LT 69 in relation to the operation of Section 52 of the Act. Said the learned Judge :
'There is a passing reference in it to the scope of Section 52 of the Act, M. S. Menon. C. J., has taken the view that Section 52 will apply only to cases of appeals from suits mentioned in Sections 22 to 50. Madhavan Nair. J., did not go that much and he rested his conclusion on the fact that as there is a special provision in respect of appeals to the High Court under Section 5 of the High Court Act, the general provision in Section 52 has no application.'
The learned Judge further observed :
'Section 52 is a general provision relating to appeals. It provides that the fee payable in an appeal shall be the same as the fee that would be payable in a Court of first instance on the subject-matter of the appeal. It is not limited to appeals from suits provided for in Sections 22 to 50, The language of Section 52 does not warrant such a conclusion ......'
With great respect, we endorse this view. The observation in 1965 Ker LT 69 that Section 52 will apply only to cases where the subject-matter will vary is open to doubt. Since a further investigation into that aspect is not strictly necessary in this case, we do not propose to discuss the question further.
5. This appeal is from a decree. Article 3 (iii) in Schedule II prescribes court-fee payable in memoranda of appeals from an order. Since the order in question passed under the Hindu Marriage Act is a decree it is clear that the provision quoted above cannot apply. If Article 3 of Schedule II does not apply, then the only provision that can apply for computation of court-fee is Article 1 (vi) read with Section 52. Section 52 reads :
'52. Appeals--The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal.'
This section is not limited in its terms to appeals from any distinct category of proceedings. The emphasis is on the subject-matter. The subject-matter of appeal here is the same as the subject matter of the petition filed in the Court of first instance. Section 52 directly applies. Court-fee payable is the same court-fee that is paid in the Court of first instance.
6. The appellant's counsel contended that though under the Hindu Marriage Act decisions under Sections 9, 10, 11, 12 and 13 would be decrees, they are not decrees under Section 2(2) of the Code of Civil Procedure and therefore insistence on payment of court-fee for an appeal as an appeal from a decree is bad. He referred us to the decisions reported in Antala Gope v. Sarbo Gopain, (AIR 1962 Pat 489) and in Bai Umiyaben v. Ambalal, (AIR 1966 Guj 139). In the earlier case it is observed that use of the word 'decree' in Section 13 of the Act was only to distinguish it from the word decree as is defined in the Code of Civil Procedure. In the other case, a Division Bench of the Gujarat High Court was considering the question whether a second appeal would lie from an appellate judgment arising from proceedings under the Hindu Marriage Act, 1955. We refrain from considering these two decisions at length, though with respect, we have our reservations about some observations made therein, since the question posed before us admit of no doubt. The appellant's contention is to treat the decision under appeal as an order though it is termed decree, under the Act. This will be doing violence to the various sections of the Act especially Section 28 which provides for appeals. The provisions in Schedule II of the Act of which mention has already been made, has provided for court-fees not only for petition and plaint but also on memoranda of appeals. The Hindu Marriage Act came into force in 1955 while the Court-fees Act came into force in 1959. It is significant that the Legislature designedly omitted to mention memorandum of appeal in Schedule II (1) (vi) of the Act. Since the decision under appeal cannot be termed an order but is only a decree, court-tee has to be paid under Section 52 of the Act. We hold that the Court-fee payable is Rs. 30/-.
In the result, we uphold the objection of the Taxing Officer and direct the appellant to pay additional court-fee ot Rs. 20/-. Time for payment of court-fee one month from today.