Alfred Henry Lionel Leach, C.J.
1. This matter has been placed before a Full Bench as it raises a question of importance under the Court-Fees Act and involves the consideration of certain Bench decisions of this Court. The petitioner was allowed to file an appeal in forma pauperis, but, at a later stage, it was discovered that he was not a pauper and an order was passed by Horwill, J., dispaupering him. In addition to directing that the petitioner should pay the appropriate court-fee on the memorandum of appeal the learned Judge directed him to furnish security for the costs of the respondent in the sum of Rs. 8,000 within three months from the 4th of November, 1937. This order was not complied with, and on the 4th March, 1938, the appeal was placed in the list of Venkatasubba Rao and Abdur Rahman, JJ., who passed the following order:
The security ordered has not been furnished. The appellant has been dispaupered. Both sides agree that the appeal has to be dismissed, and it is accordingly dismissed. We fix the advocate's fee at Rs. 750. The appellant will pay to the Government the court-fee payable on the memorandum of appeal.
2. After the expiration of ninety days the petitioner presented a petition asking the Court to review its order dismissing his appeal. This petition bears a stamp of the value of Rs. 2, which the petitioner maintains is the proper court-fee by virtue of the provisions of Article 1 of Schedule II of the Court-Fees Act. The question of the correctness of the stamping having been raised, it was referred to the Taxing Officer, who held that the application should be stamped ad valorem under Article 4 of Schedule I of the Act. Article 1 (d) of Schedule II provides that a court-fee of Rs. 2 shall be paid on an application or petition when presented to a High Court. Article 4 of Schedule I states that on an application for review of judgment, if presented on or after the ninetieth day from the date of the decree, the fee leviable shall be the fee leviable on the plaint or memorandum of appeal. Therefore, the question is whether this Court's order of the 4th of March, 1938, dismissing the petitioner's appeal for default in payment of the required court-fee and in furnishing the required security is a decree within the meaning of Article 4 of Schedule I of the Court-Fees Act. It has not been suggested that the word 'decree' here has any different meaning from the word 'decree' as defined by the Code of Civil Procedure. Section 2 (2) of the Code says:
'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include--
(a) any adjudication from which an appeal lies as an appeal from an, an order, or
(b) any order of dismissal for default.
3. Sub-clause (14) of Section 2 defines the word 'order' as meaning the formal expression of any decision of a Civil Court which is not a decree.
4. The learned Government Pleader accepts the proposition that an order dismissing an appeal for non-compliance with an order requiring security is not a decree within the definition given in the Code. In fact there is ample authority of this Court and other High Courts that such an order is not a decree. The question was first raised in Lekha v. Bhauna I.L.R. (1895)All. 101 , where a Full Bench of the Allahabad High Court held that an order rejecting an appeal under Section 549 of the Code of Civil Procedure of 1882 (which corresponds to Order 41, Rule 10 of the present Code) was not appealable, either as an order or as a decree. The basis of the decision was that an order under S, 549 was not a final expression of an adjudication upon any right claimed or defence set up. In the Code of 1882 the definition clause read as follows:
'Decree' means the formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit (or appeal). An order rejecting a plaint or directing accounts to be taken, or determining any question mentioned or referred to in Section 244, but not specified in Section 588, is within this definition; an order specified in Section 588 is not within this definition.
5. This view was accepted as being the correct view by this Court in Singani Mupan v. Krishna Char (1910) 9 M.L.T. 117, and Guruswami Naidu v. Narayana Naidu 1932 M.W.N. 655. The first of these cases was decided when the Code of 1882 was in force and the second after it had been replaced by the Code of 1908. The Calcutta High Court took the same view in Jnanadasundari Shaha v. Madhabchandra Mala I.L.R. (1931)Cal. 388. In that case Suhrawardy, J., dealt with the effects of Section 107 of the Code of Civil Procedure in this connection. Section 107 confers upon an appellate Court the same powers as are conferred by the Code on a Court of original jurisdiction in respect of suits. Suhrawardy, J., pointed out that Section 107 does not purport to give an order passed by an appellate Court the same effect as an order passed by an original Court of a like nature. Section 2 expressly says that the word 'decree' shall be deemed to include the rejection of a plaint. If it was the intention of the Legislature to include' within the definition of 'decree' an order rejecting a memorandum of appeal it would, he considered, have expressly said so. In Srinivasam Pillai v. Rukmani Ammal (1927)55 M.L.J. 330, this Court accepted the judgment in Ramesh Chandra Das v. Sarada Kripa Lala I.L.R. (1921) Cal. 355, as embodying the correct statement of the law. An examination of the language used in defining the word 'decree' in Section 2 (2) of the Code of Civil Procedure convinces me that the order which Venkatasubba Rao and Abdur Rahman, JJ., passed on the 4th of March, 1938, directing that the appeal should be dismissed for non-payment of court-fee and for failure to furnish security, is not a decree. After saying that the word 'decree' means the formal expression of an adjudication which, so far as the Court expressing it, conclusively determines the rights of parties with regard to the matters in dispute in the suit, the section goes on to say what the expression shall be deemed to include and what it shall not include. It does not include two kinds of orders, namely : (1) An adjudication from which an appeal lies as an appeal from an order and (2) an order of dismissal for default. What was the order of the 4th of March, 1938, but an order dismissing the appeal for default? The appeal had been admitted in forma pauperis but on it becoming apparent that the appellant was not a pauper the Court in effect said:
. . . .you shall not proceed unless you pay the proper court-fee as you are no longer a pauper.
6. The appellant failed to pay and therefore entitled the Court to dismiss the appeal for default in payment. The fact that there was a further condition unfulfilled--the condition with regard to the furnishing of security--and that Order 41, Rule 10 (2) directs that, where security is not furnished within such time as the Court orders, the Court shall 'reject' the appeal, does not turn the order dismissing the appeal into a decree. As I have shown there is ample authority for the proposition that an order under Order 4l, Rule 10 (2) is not a decree.
7. Our attention has been drawn to three decisions of this Court, Venkatarayadu v. Rangayya Appa Rau I.L.R. (1897)Mad. 152, Ayyanna v. Nagabhushanam I.L.R. (1892)Mad. 285 and Zamindar of Tuni v. Bennayya : (1898)8MLJ304 , but these cases are not really in point. In the first of them an appeal petition was presented with an insufficient court-fee. It was accordingly returned to the appellant, but after the period of limitation had expired it was again presented, this time with a sufficient stamp. The District Court refused to admit the appeal. It was held on appeal to this Court that no appeal lay. In Ayyanna v. Nagabhushanam I.L.R. (1892) Mad. 285, the facts were that an appeal had not been properly presented within the meaning of Section 541 of the Code of 1882 which corresponds with Order 41, Rule 1 of the present Code, and an order was passed rejecting it. It was held that this order was a decree. In Zamindar of Tuni v. Bennayya : (1898)8MLJ304 , a memorandum of appeal was returned to the lower appellate Court because certain language used in the document was disrespectful. The appellant refused to alter his memorandum of appeal and the appeal was rejected. It was held that an appeal lay against the order of rejection. In none of these cases was it a question of 'default'.
8. It follows that in my opinion the order of the 4th of March, 1938 dismissing the appeal was not a decree within the meaning of the definition of the term in the Code of Civil Procedure, and this being so, the petitioner is entitled to stamp his application for review with a court-fee of Rs. 2 under Article 1 of Schedule II of the Court-Fees Act.
Venkataramana Rao, J.
9. I agree.
10. The order passed on the 4th March, 1938 in this case was passed for non-compliance by the petitioner in respect of two matters, (1) non-payment of the court-fee and (2) not furnishing security for costs. In so far as the order of dismissal for non-compliance with the order for furnishing security for costs is concerned, there can be no doubt that it is not a decree. This view has been consistently held by all the High Courts, including our Court. The next question is whether the order, in so far as it purports to be an order of dismissal for non-compliance in regard to payment of the court-fee, is a decree. I agree with my Lord that it is an order of dismissal for default within the meaning of Section 2 (2) of the Code of Civil Procedure and therefore is not a decree. The order, though it purports to be one for non-compliance with an order for payment of the court-fee, is strictly an order for non-compliance of an order passed in consequence of an order of dispaupering made under Order 33, Rule 9. The word default in Section 2(2) (b) of the Code of Civil Procedure, in my opinion, need not be confined only to default of appearance, but may include other defaults as well, and certainly this default.
11. Therefore I agree that the proper court-fee that is payable in respect of this application is only Rs. 2 under Article 1 of Schedule II of the Court-Fees Act.
12. I agree.