1. The following question has been referred to this Bench for decision :
'Whether if an application under Section 10 of the Act is rejected on the ground that the applicant is not a displaced person, the ad valorem court-fee is to be paid as required by Article 1, Schedule 1 of the Court-fees Act on the memorandum of appeal?'
2. The facts, which have led to this reference, are these:
3. The appellant namely the Punjab National Bank Ltd. filed an application before the Civil' Judge, Alwar, acting as the Tribunal under Section 10 of the Displaced Persons (Debts Adjustment) Act (No. LXX) of 1951 (hereinafter called the Act). Notice was issued to the debtor namely Fi'rm Isardas Kaluram, and it was objected by the debtor that the creditorwas not a displaced person, and therefore not entitled to make an application under Section 10 of the Act. This objection prevailed, and the application of the creditor was dismissed.
The creditor filed an appeal to the High Court under Section 40 of the Act. An objection was then raised by the debtor respondent on the authority of Kishandas v. Parasram, AIR 1955 Raj 81 (A), that the appellant should pay full court-fee on the amount of Rs. 94,321/6/3. The appellant, however, contended that the case was covered by Schedule II, Article 11 of the Court-fees Act, and therefore, the court-fee already paid was sufficient.
4. The Division Bench, which heard the appeal, was of the view that the point raised was of considerable importance, and therefore referred the question, which we have already set out to a Full Bench, for decision, particularly in view of the decision in AIR 1955 Raj 81 (A).
5. The Act contemplates three kinds of applications. Firstly, applications are made by displaced debtors for adjustment of debts under Section 5. These applications are disposed of in the manner provided in the following sections, and if not rejected are heard under Section 9, and AIR 1955 Raj 81 (A), deals specifically with an application under Section 5 which is heard under Section 9.
Secondly, an application may be made under Section 10 of the Act by a displaced creditor against a displaced debtor. The procedure for dealing with this application is provided under Section 11. Sub-section (1) of that section provides for notice to the debtor. Subsection (2) lays down that if upon notice the debtor makes an application in accordance with Section 5, the Tribunal shall proceed further in the matter as if it had commenced with an application by the displaced debtor under Section 5.
The present, however, is not a case of that kind. Sub-section (2) also provides that where the debtor does not make an application in accordance with the provisions of Section 5, the Tribunal shall, after considering such evidence, if any, as may be produced before it, determine the claim, and pass such decree in relation thereto as it thinks fit. It is this provision in Section 11(2) which falls for consideration before us.
6. The third kind of application is made under Section 13 by displaced creditors against persons who are not displaced debtors. That application is disposed of in the manner provided by Section 14.
7. The question that arose in Kishandas's case (A), was the amount of court-fee to be paid in appeal in a case decided under Section 9 on an application under Section 5. It was there held that Schedule II, Article 11 or Schedule II, Article 17 did not apply to a case of that kind, and that the only Article that applied was Schedule I, Article 1 which provided for ad valorem court-fee.
That decision was based on the words of Section 9(1) of the Act which definitely provided for decrees by the Tribunal. Section 9(1) envisages a decree in three circumstances viz.,
1. when there is a dispute as to whether the applicant is a displaced person or not,
2. when there is a dispute as to the existence or the amount of the debt,
3. when there is a dispute as to the assets of any displaced debtors,
We have looked up the record in Kisbandas's case (A), and find that that particular case was with reference to the existence or the amount of the debt. Strictly speaking therefore that case is a direct authority only for those cases where the existence or the amount of the debt, is in dispute, and a decree is passed after contest on that point.
It is said that Section 9, of the Act contemplates a decree, and where therefore, the application is dismissed the order dismissing the application must be taken as a decree or, at any rate, an order having the force of a decree. It is, however, clear that only those decisions, which would be clearly covered by the words of Section 9 of the Act, would amount to decrees.
If the dispute was not one of the three kinds which we have pointed out above, the decision would not, in our opinion, amount to a decree, even though it may finally determine the matter between the parties. What effect Section 12 of the Act would have on a decision under Section 9 relating to the assets is a matter which did not directly arise in Kishandas's case (A), and might have to be considered when such a case actually arises.
8. Let us now turn to Section 11, and see what exactly is the decree envisaged by Section 11(2) where the debtor docs not make an application in accordance with the provisions of Section 5. The relevant words of Section 11(2) are these
'but, if the displaced debtor does not choose to make any such application, the Tribunal shall, after considering such evidence, if any, as may be produced before it, determine the claim and pass such decree in relation thereto as it thinks fit.'
These words, in our opinion, refer to the determination of the claim of the creditor, and may be taken to be analogous to the decision of a dispute as to the existence or the amount of the debt, due to the creditor which we find in Section 9(1). It is only, in our opinion, when the Court considers the claim, and decides as to the existence or the amount of the debt due to the creditor that the decision given by it amounts to a decree under Section 11(2).
This decision as to the existence or the amount of the debt may be made on any ground, say for example limitation, res judicata or on the merits. But where the Court, does not proceed to determine the existence or the amount of the debt of the creditor, it cannot, in our opinion, be said that the Court was determining the claim of the creditor.
Where therefore the Tribunal dismisses the application of the creditor on any ground other than one relating to the existence or the amount of the debt, it is not, in our opinion, determining the claim of the creditor within the meaning of those words in Section 11(2). In the present case, the Tribubunal did not go into the question of the existence or the amount of the debt at all.
It merely dismissed the application on theground that the creditor not being a displaced person could not make an application under Section 10,There was thus never a determination of the claimmade by the creditor within the meaning of thosewords in Section 11(2). Therefore, the final order passed by the Court cannot amount to a decree, for itis only when the final order is strictly in accordancewith what is provided in Section 11(2) that it can amountto a decree.
We are therefore of opinion that the order passed in this case, though it finally determined the application of the appellant, was not a decree, because it did not determine the claim which, in the circumstances in which that word has been used in Section 11(2) must relate to the existence or the amount of the debt due to the creditor.
The creditor, therefore, if he has a right of appeal, has to pay court-fee under Schedule II, Article 11 which mentions appeals which are not preferred from a decree or an order having the force of a decree. Here the order, though it finally determined the application under Section 10, was not a decree; nor did it have the force of a decree for it is not strictly in accordance with the terms of Section 11(2).
9. It may be mentioned that the dispute whether the applicant is a displaced person or not is not specifically mentioned in Section 11, and therefore any order passed with respect to it cannot strictly be called a decree. The reason for that may be that if an application is dismissed under Section 10 on the ground that the applicant is not a displaced creditor, the right of the applicant to sue under the ordinary law is not taken away by any provision in the Act.
10. Let us now notice the cases cited by learned counsel in this connection.
11. The first case is Sita Ram v. Mool Chand,AIR 1954 All 672 (B). That was a case relating toan application under Section 13, which, was dealt underSection 14(3). The learned Judge held that the orderpassed under this sub-section would be a decree.With all respect, we wish to point out that an orderpassed under Sub-section (3) would be a decree if it is passed after considering matters which are mentioned inSub-section (2) of Section 14.
But if it was passed without considering those matters, it would not, in our opinion, amount to a decree. We feel that this Act is an ameliorative measure for the benefit of displaced persons. It should be strictly interpreted, and only those orders should be considered decrees, which come strictly within the terms of Sections 9, 11(2) and 14(2).
Where however the order does not come strictly within the terms of those provisions, it should not be treated as a decree, but only as an order determining the application. In Sitaram's case (B), none of the points specifically mentioned in Sub-section (2) of Section 14 was considered, and the application was dismissed on another ground altogether.
In such a case, we would not be prepared to call the order a decree even though it was passed under Section 14(3). The decree under Section 14(3) should, in our opinion, be governed by the same considerations which apply to Section 14(2), even though there may be no contest.
12. The next case is Taxing Officer v. Jamnadas Dharamdas, AIR 1956 Bom 563 '(C). In that case, the learned Judge pointed out that the word 'decree' was not defined in the Court-fees Act. He also pointed out that the expression 'decree' as used in the Court-fees Act appeared to have the same meaning as that expression had in the Code of Civil Procedure.
But he held that though the Act used the word 'decree' in Sections 9, 11 and 14, it was not a decree within the meaning of the Court-fees Act. With all respect we fail to understand why, when the same word 'decree' is used in the Court-fees Act as well as in the Act, and when there is no definition ofthat word either in the Act or in the Court-fees Act, the word 'decree' should not have the same meaning in the Act as well as in the Court-fees Act.
13. The last case) to which reference may be made, is Sohan Singh v. Liverpool and London and Globe Insurance Co. Ltd., Calcutta, AIR 1956 Punj 153 (D). In that case, the learned Judge held that in an appeal under the Act (ad valorem court-fee is not payable --Ed.), and the reasoning given is that it was never anybody's intention that displaced persons whether debtors or creditors should have to pay ad valorem court-fee on appeals against orders dismissing their applications.
With all respect, we can only say that if this was the intention of the legislature, it should have been made clear in the Act. In the absence of any such clear provision, the law relating to court-fees must apply to appeals under the Act, and the legislature could not have been ignorant of the fact that there was such a tiling as the Court-fees Action the statute book.
14. Our answer therefore to the question referred to us is that where an application under Section 10 is rejected on the ground that the applicant is not a displaced person, the order does not amount to a decree, and ad valorem court-fee is not to be paid, and the appeal can be filed with the court-fee provided in Schedule II, Article 11 of the Court-fees Act.