Arthur J.H. Collins, Kt. C.J. and Muthusami Aiyar, J.
1.The question referred to the Full Bench is, whether a second appeal will, lie in this case. The property in dispute belonged to the 1st and 2nd defendants. In August 1886, they sold it to one Rama Kurup, who sold it again to plaintiff in February 1889. The third defendant obtained a money decree against the first and second defendants in Original Suit No. 26 of 1888 on the file of the Subordinate Court of North Malabar and brought the property once more to sale in execution, and the fourth and fifth defendants purchased it at the court sale for Rs. 975.
2. The plaintiff preferred a claim as prior purchaser but as it was disallowed, she brought this suit to establish her title and to set aside the second sale. The court fee paid on her plaint was computed on the sale amount, viz., Rs. 975, and the Court of First Instance held that the sale in her favor was only a colorable transaction and dismissed the suit with costs. From this decision, the plaintiff preferred an appeal and paid on the memorandum of appeal, the same court fee as on the plaint. But the District Judge considered that court fee was payable on the amount of the decree in Original Suit No. 26 of 1888, viz., 2,894-8-0 and called on the plaintiff to make good the deficiency, Rs. 193, within fifteen days from the date of his order.
3. On the plaintiff failing to comply with this order, the appellate court rejected the appeal, and the preliminary objection is taken before us, that the decision of the judge is final under Section 12 of the Court Fees Act and that no second appeal can be entertained.
4. Our decision must depend on the construction which ought to be put on Section 12 of the Court Fees Act and on the provisions of the Code of Civil Procedure relating to the same matter.
5. Section 12 of the Court Fees Act enacts that every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal, shall be decided by the court in whish such plaint or memorandum of appeal, as the case may be is filed, and such decision shall be final as between the parties to the suit. If this section stood alone, the order of the judge, that court fee must be paid, not on the sale amount, but on the amount of decree in execution of which the sale took place, would be final and not open to appeal, however erroneous that order might be. But the Court Fees Act came into force on the 1st April 1870, and Act VIII of 1859 was the Code of Civil Procedure then in force. Section 81 of that enactment contemplated the valuation of a suit in two aspects and provided that 'if it appears to the court that the claim is improperly valued, or being properly valued, that the plaint is written upon stamped paper of inadequate value, and the plaintiff on being required by the court to correct such improper valuation, or to supply such additional stamp as may be necessary, shall not comply with the requisition, the court shall reject the plaint.' Section 36 allowed an appeal from every order rejecting a plaint.
6. On comparing the Court Fees Act with the Code of Civil Procedure it will be observed that the material words in the one are 'valuation for the purpose of determining the amount of court fee payable on a plaint'--and those in the other, are 'if the claim is improperly valued, or being properly valued, the, plaint is written upon stamped paper of inadequate value.' The former contemplated the actual fee which ought to be paid, and the latter the two factors involved in computing it. Shortly after the Court Fees Act, the question how the two enactments, are to be construed together so that effect may be given to the provisions of both which relate to the same matter or are in pari materia, came under the consideration of the different High Courts in this country.
7. The first case in which the question was considered is that reported in I. L. R 2 B 145 Narayan Madhavrao Naik v. The Collector of Thana. The decision therein adopted the principle, that where a later Act is absolutely repugnant in one of its provisions, to a provision in a former Act, the earlier enactment is pro tanto repealed and the learned judges who took part in that case came to the conclusion that under Section 12 of the Court Fees Act the decision of the Lower Court on the amount of court fee payable was final, that the category in which a suit is to be placed was as essential an element of valuation as the subsequent arithmetical computation, by which the fee payable was ascertained, and that Section 12 of the Court Fees Act virtually repealed Section 36 of the Code of Civil Procedure.
8. We must observe here that Section 36 of the Civil Procedure Code was not mentioned in the second or third schedule of the Court Fees Act amongst the enactments wholly or partially repealed and this circumstance gave rise to a doubt as to whether Section 12 repealed Section 36, when the question came to be considered by the High Courts at Calcutta and Allahabad.
9. In determining the amount of court fee, it will be noted that there are two factors to be considered. It is first necessary to decide to which of the several classes of suits recognized by the Court Fees Act, the suit in question belongs and when the fee prescribed for any particular class of suits, is regulated by the value ' of the subject matter of the suit, the further question to be considered is, what is the valuation for the purpose of determining the amount of the fee. It was held at Calcutta in the cases reported in 19 W. R 214 Gunga Monee Chawdhrain v. Gopal Chunder Roy, and 7 B, L. R 663 The Collector of Sylhet v. Kalihumar Dutt and at Allahabad in the case reported in I. L. R 1 A 360 Chunia v. Ramdial, that when the judge makes a mistake as to the category in which the suit is to be placed, an appeal will lie under Section 36 of Act VIII of 1859; and when the error is in the computation of value, the decision of the judge is final under Section 12 of the Court Fees Act.
10. Then Act X of 1877 was passed in the place of Act VIII of 1859, and with the conflicting decisions of the different High Courts before them, the legislature adopted the principle laid down by the High Courts at Calcutta in 19 W. R, 214 and at Allahabad in I. L. R 1 A 360 Section 54, C. P. C, adopted the classification contained in Sections 31 and 32 of Act VIII of 1859, and referred in Clause (a) to undervaluation of the relief sought and in Clause (b) to cases in which the relief is properly valued but the plaint is written upon paper insufficiently stamped. In place of Section 36 01/2 Act VIII of 1859 which permitted an appeal from every order rejecting a plaint, was inserted only the order passed under Clause (b) among the appeasable orders specified in 3. 588 in Act X of 1877.
11. The next case to which we may refer is the leading case in this Presidency, of Annamalai Chetti v. Gloete, reported in I. L. R 4 M 204 wherein the learned Chief Justice after explaining the course of legislation, held that Section 12 of the Court Fees Act, which makes the decision of a court in which a plaint or memorandum of appeal is filed, final on questions relating to valuation for the purpose of determining the amount; of court fee chargeable, does not affect the question as to the class of suits in which a particular suit ought to be placed. It is thus clear that under Section 588 as if originally stood, an appeal was allowed if there is an error as to the category in which the suit ought to be placed.
12. The two cases which are referred to as being in conflict with the decision in Annamalai Ghetti v. Cloete, are the decision in Second Appeal No. 1001 of 1891 (Madras) and the case reported at I. L. R 12 A 154 The last mentioned decision of the Full Bench is in conflict with the Full Bench decision reported in I. L. R 11 A 91
13. But in none of these cases the course of legislation and the intention of the legislature to be presumed therefrom, appear to us to have been duly considered.
14. Another question which requires to be noticed is whether the amendment Act has made any difference. Section 54, as since amended, retains the classification but orders passed under that section are defined among orders which have the force of a decree. There is no trace of an intention to enlarge or contract the right of appeal with reference to such orders. Under Section 540, an appeal will lie from every decree unless when otherwise expressly provided by this Code or by any other law for the time being in force. No appeal was allowed by Act X of 1877 from an order under Section 54, Clause (a), and there is so intention to give an appeal in such case. The Code as amended simply restores the law to the footing on which it stood before Act X of 1877 was passed and the course of decisions then passed and approved by the legislature, is that followed in I. L. R 4 M 204
15. We are, therefore, of opinion that when the decision of the judge is erroneous as to the category in which the suit ought to be placed, a second appeal will lie and that in other cases, no second appeal will lie.
16. I adhere to the opinion expressed in Kanaran v. Komappan, I. L. R 14 M 169 which was founded on the Judgment in I. L. R 4 M 204 (wrongly cited in the report). I think that a question as to the category to which a suit or appeal belongs is not a question the decision of which is made final by Section 12 of the Court Fees Act.
17. [This second appeal coming on for final disposal on the 6th day of February 1894; after the expression of the opinion of the Full Bench, and having stood over for consideration till this day, the court (Muthusami Aiyar and Best J.J.) delivered the following:]