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Kshitish Chandra Maitra and ors. Vs. Satish Chandra Ghosh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal75
AppellantKshitish Chandra Maitra and ors.
RespondentSatish Chandra Ghosh
Excerpt:
- .....of the subordinate judge of pabna for re-opening of a decree under section 36(6)(a)(i), bengal money-lenders act. the court re-opened the decree and made a new one in conformity with the provisions of the bengal money-lenders act. as the new decree did not go far enough and the judgment-debtors wanted other reliefs, they preferred an appeal to the court of the district judge of pabna. the district judge directed that the appeal be registered as an appeal from an original decree and further ordered the appellants to pay ad valorem court-fees. it is against this part of the order that the present rule has been obtained.2. mr. das gupta, who appears in support of the rule has contended before us that under item 8, appx. b of the rules framed by the local government under the bengal.....
Judgment:
ORDER

1. The petitioners before us are the judgment-debtors who presented an application to the Court of the Subordinate Judge of Pabna for re-opening of a decree under Section 36(6)(a)(i), Bengal Money-Lenders Act. The Court re-opened the decree and made a new one in conformity with the provisions of the Bengal Money-Lenders Act. As the new decree did not go far enough and the judgment-debtors wanted other reliefs, they preferred an appeal to the Court of the District Judge of Pabna. The District Judge directed that the appeal be registered as an appeal from an original decree and further ordered the appellants to pay ad valorem court-fees. It is against this part of the order that the present rule has been obtained.

2. Mr. Das Gupta, who appears in support of the rule has contended before us that under item 8, Appx. B of the Rules framed by the Local Government under the Bengal Money-Lenders Act, a court-fee of Re. 1 only is payable on a suit by a borrower for relief under Section 36(1) of the Act. It is said that under Section 2(ii) of the Act, a suit would include an appeal and consequently the petitioners are entitled to file an appeal with a court-fee of Re. 1 only. We do not think that we can accept this contention as sound. In the first place, there is no interpretation clause attached to the rules under which a suit would include an appeal also. In the second place, as has been pointed out by the Court below, Section 36, Bengal Money-Lenders Act, does not provide for an appeal and consequently it would not assist the petitioners in the least even if we were to substitute 'appeal' for 'suit' in item 8 of Appx. B. An appeal lies as an appeal from a decree under Section 96, Civil P.C., and unless there is a special provision made in the Act with respect to court-fees payable on such appeals the ordinary provisions of the Court-fees Act will apply.

3. There is nothing per se unreasonable in this view. The decree maybe modified by an application for amendment which is stamped with a court-fee of 12 annas only. But if the decree is modified and an appeal is taken against the decree, the ordinary court-fees payable have to be paid. In any view of the ease, the case of the petitioners is not covered by item 8 of Appx. B nor by item 9 because it was neither a suit under Section 36(1) nor an application for review under Section 36(6)(a)(i), but it was an application under Section 36(6)(a)(i). In our opinion, the view taken by the Court below is right. The rule is, therefore, discharged. We make no order for costs.


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