1. In this petition, I am asked here to revise the order of the Subordinate Judge of Tuticorin directing the petitioner, appellant before him to pay ad valorem fees on the amount at stake in his miscellaneous appeal instead of the fixed fee of eight anmas which he had actually paid.
2. The first question raised before me is whether this is a case in which this Court can interfere in revision with reference to the terms of Section 115, Civil Procedure. Code. In order to bring the matter with in the section I have first to find wether there is a case which has been decided by a Court. The respondent contends that there is no such case because the lower Court's order does not deckle anything at all being merely a conditional order which declares that the petitioner's appeal will be dismissed, if payment is not made within a month. The petitioner, it is urged, should have waited until a month had expired, allowed his appeal to be dismissed and then brought a second appeal against the dismissal in the ordinary course. Authority is against this contention. There are, firstly, cases resembling the present case generally in which this Court has interfered in revision with merely conditional orders containing a declaration that some result will follow in case a specified condition is not complied with. In Sitaramaya v. Ramappaya 39 Ind. Cas. 160 : L.W. 207, Arunachalam Chettiar v. Arunachalam Chettiar 69 Ind. Cas. 966 : 43 M.L.J. 218 : 16 L.W. 175 : (1222) M.W.N. 453 :A.I.R. (1922) (M.) 436, and Shanmuka Nadan v. Arunachalam Chettiar 69 Ind. Cas. 961 : 45 M. 194 : 14 L.W. 642 : (1921) M.W.N. 799 : 42 M.L.J. 97 : 30 M.L.T. 172 : A.I.R.(1922) (M.) 332, this Court interfered by way of revision with orders directing the correction of misjoinder of parties or causes of action, failure to comply with which would have been followed by the dismissal of the suit at some later date. And there is further a decision of this Court in Dodda Sannekappa v. Sakravva 36 Ind. Cas. 831, which is directly in point. It is urged that the cases relating to misjoinder afford no guidance here, since in them, if the proceedings had been allowed to go on on a mistaken basis, subtantial expense and trouble would have been wrongly imposed on the party, whereas, here the only result of a refusal to deal with the order before me in revision will be that the petitioner will have to submit to the dismissal of his suit in consequence of his refusal to pay and to file an appeal against that dismissal without being put to any expense in consequence of the continuation of the proceedings. But that distinction takes no account of a more important consideration common to those cases and to this the possibility that' in appeal this Court may confirm the lower Court's older and yet may not' exercise its discretion to give the petitioner an opportunity to comply with it. The petitioner is entitled to avoid the risk of any such refusal on the part of this Court to exercise its discretion in his favour. Convenience and authority justify a decision that there is before the a case which has been decided.
3. I turn next to another question, whether the requirement of Section 115 that the Subordinate Court has failed to exercise a jurisdiction vested in it or has acted in the exercise of its jurisdiction illegally, is fulfilled. Something has been said of the wording of Section 12 of the Court lees Act, under which the decision of the Court in which the plaint is filed, is final as between the parties to the suit. But that has been explained in Lakshmi Amma v. Janamajayam Nambiar 4 M.L.J. 183 (F.B.) as not debarring the Appellate Court from dealing with the question as to the category in which the suit is to be placed for the purpose of determining the Court--fee. Generally it is impossible to hold that the order directing the dismissal of an appeal in case the payment is not made, is not a refusal to exercise jurisdiction in that appeal and the fact that such refusal is conditional has already been dealt with in connection with the question whether there is a case which has been decided. Taking this view, I hold that it is open to me to proceed with the present case under Section 115, Civil Procedure Code.
4. To turn to the merits the question is whether this appeal, relating to a claim under Section 144, Civil Procedure Code, to restitution, should be valued ad valorem under Schedule I, Article (b) of the Court Fees Act or should be valued simply as an appeal. This appeal is not from a decree or order having the force of a decree under Schedule II, Act. 11. The latter provision is applicable, if at all, in virtue of a Notification No. 434 S.R., dated 6th October, 1893, published in the Gazette of the Government of India, 1893, (sic), page 575, directing that the fee chargeable on appeals from orders under Section 214(c) of the Code of 1882, then in force, shall be limited to the amounts chargeable under the Article last referred to. Difficulty arises from the reference in the notification to the previous Code and the difference between the wording in that Code and in the Code now in force, the provision relating to restitution, Section 144 of the present Code, differing in certain respects from the former Section 583. It is common ground that before this change in the law, applications for restitution were in every sense applications in execution covered by Section 244. But the respondents contend that applications for restitution are now made, not in execution, but in virtue of a substantive right conferred by the section. If the respondent's contention is well founded, it will, no doubt, be impossible to apply the 'Government of India Notification or Schedule II, Article 11 of the Court Fees Act to such an appeal as that before me.
5. As regards the wording of the present Code I have been referred first to the definition of the decree in Section 2(2) in which section orders under Section 47 and order under Section 144 are mentioned separately, the inference supported being that under the present Code they are regarded as differing in nature. There is then the difference between the wording of the former Section 583 and the present Section 144, especially the omission from the latter of any reference to the rules prescribed for regulating proceedings in execution and a very comprehensive description in it of the orders which can be made in restitution proceedings, including those for payment of damages as compensation, which (it is said) are essentially different from those which an Executing Court can ordinarily pass. This argument is, however, supported by reference to only one decision Jiwa Ram v. Nand Ram 66 Ind. Cas. 144 : 44 A. 407 : 20 A.L.J. 226 : A.I.R.(1922) (A.) 223. On the other hand, we have in favour of the view that proceedings in restitution under the present Code, are to be regarded as proceedings in execution. Somasundaram Pillai v. Chokkalinga Pillai 38 Ind. Cas. 806 : 40 M. 780 : 5 L.W. 267, Unnamalai Ammal v. Muthan 42 Ind. Cas. 530 : M.L.J. 413 : 6 L.W. 359 : (1917) M.W.N. 643 : 22 M.L.T. 333, Mulldseri Gopala Menon v. Krisheki Kovilaknath Manavikraman 13 Ind. Cas. 179 : 10 M.L.T. 568 : 22 M.L.J. 146 and Kurgodi-gauda v. Ningangauda 41 Ind. Cas. 238 : 41 B. 625 : 19 Bom. L.R. 638. It is true that in four of these cases the question was raised with reference to limitation and in the remaining case with reference to the application of the doctrine of res judicata. But it has not been shown how that is material or why, if applications of this kind are to be regarded as made in execution in these connections, they should not be so regarded as made in execution for the present purpose. There is also one case in which the point now under consideration Was raised directly, Madan Mohan Dey v. Nogendra Nath Dey 39 Ind. Cas. 640 : 21 C.W.N. 544. The conclusion there was that applications in restitution are to be regarded as applications in execution and that on appeals from such orders Court-fee is leviable under Schedule II, Article 11.
6. Following the tenor of the decisions of this High Court and the explicit decision of the Calcutta High Court, I allow the Civil Revision Petition, set aside the lower Court's order and direct it to admit the appeal and proceed to dispose of it in accordance with law. The respondent will pay the petitioner's costs in this Court.