N.R. Chatterjea, J.
1. The question in this case relates to the Court-fee payable on a memorandum of cross-objections against an order, disallowing costs to the respondents, in the decree of the Court below. The suit was upon a mortgage and the respondents were added as parties to the suit as second mortgagees. They pleaded that with regard to a portion of the claim, they held the position of first mortgagees. The Court decided the question in their favour but did not allow them costs. The plaintiffs have appealed to this Court, and the respondents have preferred cross-objection on the ground that the Court below is wrong in not allowing them costs. They paid a Court fee of two rupees On the memorandum of cross-objections. The Stamp Reporter was of opinion that ad valorem Court-fee is payable under Schedule I, Article 1 of the Court Fees Act, because Schedule V of the Civil Procedure Code has repealed Section 16 of the Court Fees Act. The Vakil for the respondent having refused to accept the correctness of the note, the matter came up before the Registrar, and he as the Taxing Officer of the Court referred the matter to the Chief Justice under Section 5 of the Court Fees Act, as the matter is of general importance, and I have been appointed by the Chief Justice to decide the question.
2. As the question relates to Court-fees, I directed notice to be given to the Senior Government Pleader and he appeared and argued the case on behalf of the Government.
3. Schedule I, Article 1, of the Court Fees Act lays down the scale of ad valorem fees payable on a memorandum of appeal (not otherwise provided for in the Act) or of cross-objection upon the 'amount or value of the subject-matter in dispute,' and the question is whether the costs which have been disallowed by the Court below and which are claimed by the respondents in the memorandum of cross-objections, are the 'subject-matter in dispute.' The learned Pleader for the respondents relies upon the case of Doorga Dass Chowdry v. Ramanauth Chowdry 8 M.I.A. 262 : 1 Sar. P.C.J. 772 : 19 E.R. 530. In that case the question was whether costs of suit could be added in calculating the appealable value of Rs. 10,000 to the Privy Council, and the Judicial Committee held that 'the costs of a suit are not part of the subjeat-matter in dispute.' [See also Nilmadhub Dost v. Bishumber Doss 13 M.I.A. 85 at p. 103 : 12 W.R.P.C. 129 : 3 B.L.R.P.C. 27 : 2 Suth. P.C.J. 257 : 2 Sar. P.C. J. 9 : 20 E.R. 494] It is true, as pointed out by the learned Senior Government Pleader, that their .Lordships were construing the terms of the order in Council, dated the 10th April 1838, but it is clear that in their Lordships' opinion costs of suit are not the 'subject-matter in dispute' in a suit. The very same words, tie,, 'the subject-matter in dispute' are used in Article 1, Schedule I of the Court Fees Act.
4. The question does appear to have been considered in any case in this Court. In the Madras Court, a reference was made on the point by the Taxing Officer [see Makki, In re 19 M. 350 : 6 Ind. Dec. (N.O.) 950], and the Court gave its decision as follows:--'The appellant has made the costs the subject-matter of dispute, and, therefore, a Court fee stamp is leviable.' In the case for decision stated by the Registrar of the Madras High Court reference was made to the two decisions of the Judicial Committee in Doorga Dass Chowdry v. Ramanauth Dass Chowdry 8 M.I.A. 262 : 1 Sar. P.C.J. 772 : 19 E.R. 530 and Nilmadhub Doss v. Bishumber Dost 13 M.I.A. 85 at p. 103 : 12 W.R.P.C. 129 : 3 B.L.R.P.C. 27 : 2 Suth. P.C.J. 257 : 2 Sar. P.C. J. 9 : 20 E.R. 494, and also to a proceeding of the Madras High Court (on a reference by a District Court) in which the Court, while pointing out that its answer was not authoritative, expressed the opinion that no fee was leviable under Section 16 of the Court Fees Act on an objection (under Section 561 of the Code) which had reference only to so mush of the lower Court's decree as disallowed costs, and quoted the dictum of the Privy Council that 'costs are no part of the subject-matter in dispute,' The Registrar pointed out; that the proceeding disclaimed any authoritative force, and the 'practice of the Registrar's office has never been brought into conformity with the rule laid down.' The question stated for decision of the Court by the Registrar was 'when apart from, and independently of, any other reliefs which an appellant seeks in an appeal from a decree, he seeks distinct relief on the ground that by the decree under appeal the costs of the parties In the proceedings which terminated with the decree have not been properly assessed or apportioned, should the value of such distinct relief be reakoned as part of the subject-matter in dispute for the purposes of the First Schedule of the Court Fees Act or should the said value be excluded from compensation.' As stated above, the Court gave its decision that Court-fee is leviable because the appellant has made the costs the subject matter of dispute, But the Privy Council in the eases sited above pointed out that costs are not the subject-matter of dispute. It does not appear whether the Court in the case in Makki, In re 19 M. 350 : 6 Ind. Dec. (N.O.) 950 considered the Privy Council decisions or gave its opinion with reference to the practice of the Madras Court.
5. The other eases relied upon by the learned Government Pleader are Rowlins v. Lachmi Narain Jha 44 Ind. Cas. 50 : 3 P.L.J. 443 : (1918) Pat. 264 : 4 P.L.W. 221 and Lakhan Singh v. Ram Kishen Das 43 Ind. Cas. 179 : 40 A. 93 : 15 A.L.J. 886. In the first case on a reference Roe, J., held that 'when the appeal against costs is distinct and separate from other parts of the appeal, Court-fees must be paid, ad valorem on the costs decreed.' No reasons whatever are given for the decision. The case for opinion is not set put in the report, and it does not appear that the observations of the Judicial Committee in the cases referred to above were considered. In the second case Tudball, J., on a reference by the Taxing Officer held that the respondent must pay Court-fee on Rs. 1,000 at which he valued the relief sought by him in his cross-objection. It seems that the cross-objection referred to matters other than costs as well (as the suit was partly decreed and partly dismissed) and was valued at Rs. 1,000. Under these circumstances, the respondent was bound to pay ad valorem Court-fee under Article 1, Schedule I of the Court Fees Act. It does not appear whether the cross-objection relating to costs was separately valued, nor is anything stated in the decision about Court-fee payable on the, cross-objection1 as to costs.
6. In the case of Debendra Mohan Rai v. Sona Kunwar A.W.N. (1901) 21 : 26 A. 291 : 1 A.L.J. 5 the Court of first instance decreed the plaintiffs claim and part only of the interest, but disallowed interest to the extent of Rs. 67-14-0 and also disallow-ed costs. In the memorandum of appeal, the plaintiff objected both to the disallowance of the Rs. 67-14-0, interest, and to the disallowance of costs, but it was stamped with Court-fee on Rs. 67-14-0 only. The appeal was admitted upon a report of the Munsarim that it was duly stamped, but at the hearing the learned Judge of the lower Appellate Court held that having regard to the ruling reported as Mahki, In re 19 M. 350 : 6 Ind. Dec. (N.O.) 950, the memorandum of appeal should have been stamped with a further Court-fee on the costs disallowed, that he could not avail himself of Section 54 of the Code of Civil Procedure or of Section 23 of the Court Fees Act, 1870, in order to enable the deficiency, to be supplied, and accordingly dismissed the appeal. On second appeal the learned Judges held that the Court of Appeal below had full power to order the deficiency to be made good under Section 28 of the Court Fees Act, as the memorandum of appeal had been received through mistake or inadvertence of the officer of the Court. The question whether any Court fee was payable with respect to the appeal for costs does not appear to have been raised before, or considered by, the High Court. It was assumed that Court fee was payable, and all that the High Court considered was, whether the Appellate Court had power to order the appellant to make good the deficiency in the Court-fee.
7. Of the four cases, therefore, cited by the learned Pleaders before me, the decisions in Makki, In re 19 M. 350 : 6 Ind. Dec. (N.O.) 950. and Rowlins v. Lachmi Narain Jha 44 Ind. Cas. 50 : 3 P.L.J. 443 : (1918) Pat. 264 : 4 P.L.W. 221 do not state any reasons. In the case reported as Lakhan Singh v. Ram Kishen Das 43 Ind. Cas. 179 : 40 A. 93 : 15 A.L.J. 886 there was no express decision with respect to Court-fee payable for the costs separately, and in the case of Debendra Mohan Rai v. Sona Kumar A.W.N. (1901) 21 : 26 A. 291 : 1 A.L.J. 5 it was assumed that Court-fee was payable upon the appeal for costs. In tha Madras case, however, the reasons are stated in the case for reference. Now, if the decision of, the Court (taken along with the reasons stated by the Registrar) be correct, viz., that when apart from and independently of any other reliefs which an appellant geeks in an appeal from a decree he seeks distinct relief with regard to costs, ad valorem Court fee is payable for costs, the valuation of the appeal will have to be made not only upon the value of the subject-matter of the suit, but also upon the amount of costs payable in the suit, in every case in which there is a distinct ground of appeal with respect to costs. So far as I am aware, costs are never taken into account in valuing appeals to this Court, at any rate when the appeal raises other grounds (than costs) as well. The learned Government Pleader did not contend that any Court-fee is payable On an appeal relating to costs where the appeal raises other grounds also. His contention is that where the appeal claims any substantive relief and there is also a ground relating to costs, no separate Court-fee is payable for costs because costs follow the event, but that it is otherwise where the appeal relates to costs only. That reasoning may apply only where the appeal relates to the entire claim, and the argument is opposed to the decisions in the cases cited by him, because according to those cases whenever a separate relief is claimed on the head of costs in the appeal, Court-fee is payable on such costs. The reasoning has no application where, for instants, the plaintiff gets a decree for RS. 990 in a suit valued at Rs. 1,000 and costs are disallowed, and he appeals for Rs. 10, i.e., the portion of the claim disallowed, and for costs. If his appeal succeeds, viz., to the extent of Rs. 10 and costs are allowed on the whole claim, it cannot be said that the costs followed the event. The costs following the event will be costs only upon Rs. 10. The decree by the Appellate Court for the entire costs of the suit cannot. in such a case be said to depand upon the success of the appeal, which is confined to Rs. 10 only. I am unable, therefore, to accept the distinction attempted to be drawn as sound.
8. It is contended by the learned Pleader for the respondents that the cross-objections came under Article 11 of Schedule II of the Court Fees Act, which provides that the Court fee payable on a memorandum of appeal, when the appeal is not from a decree, is two rupees.
9. The learned Government Pleader points out that Order XLI, Rule 22, provides for filing of objections by the respondent against any part of the decree, and Order XX, Rule 6, of the Code lays down that the decree shall state the amount of costs to be paid and by whom such costs are to be paid. It is accordingly contended that costs are part of the decree, that the cross objection under Order XLI, Rule 22, with regard to costs disallowed is, therefore, against a part of the decree, viz., that relating to costs, and consequently cannot come under Schedule II, Article 11, which is applicable only when the appeal is not from a decree, and if it does not come under that Article, it must come under Schedule I, Article 1.
10. Section 2 of the Civil Procedure Code lays down that a decree is 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. It is contended by the learned Pleader for the respondents that everything contained in a decree is not part of the decree, and that the determination of the question of costs is not determination of the rights of parties with regard to matters in controversy in the suit.
11. The point is not free from difficulty, but it is not necessary in the present case to decide whether a memorandum of appeal which raises the question of costs can some under Schedule II, Article 11, which provides for payment of a Court-fee of two rupees on a memorandam of appeal when the appeal is not from a decree, in other words, whether costs are to he taken as part of a decree when a memorandum of appeal is filed upon the question of costs. The present case relates to cross-objections, and although memorandum of cross-objections is mentioned in Article 1, Schedule I, it is not mentioned in Schedule II, Article 11. Possibly it is a case of omission.
12. The learned Government Pleader, as stated above, contends that if the matter does not come under Schedule II, Article II, it must fall under Schedule I, Article 1. But that does not follow. Unless costs some within the words subject-matter in dispute,' cross objections on the question of costs only cannot be brought under Schedule I, Article 1.
13. From what is stated above, it follows that a memorandum of cross-objection relating to costs only does not fall either within Article 11, Schedule II, as contended on behalf of the respondents, nor under Article 1, Schedule I, as contended by the learned Government Pleader. It is unnecessary to consider the applicability of Article 17(VI) of the Second Schedule, because it relates to 'memorandum of appeal' and not 'cross-objection' as in the case of Article 11 of the Second Schedule. That being so, and there being no other Article which can apply to it, I think the memorandum of cross objections relating to costs only may be treated as a petition, and comes under Clause (d), Article 1, Schedule II, which provides that a Court-fee of two rupees is payable on an application or petition when presented to a High Court.
14. With reference to the Stamp Reporter's note that Schedule V of the Civil Procedure Code has repealed Section 16 of the Court Fees Act, I think that nothing turns upon it. Under Section 16, Court-fee had to be paid at the time of urging the cross objections, Now it has to be paid at the time when the cross-objections are filed.
15. My decision is confined only to the question of Court-fee payable on a memorandum of cross-objections relating to costs only, and I do not express any definite opinion. upon the question of Court-fee payable on a memorandum of appeal relating to costs, which does not arise in the present case.