1. This is a reference by the Taxing Officer under Section 5 of the Court Fees Act.
2. The question for determination is, what is the Court-fee payable on an appeal from an order under Section 144 of the Civil Procedure Code.
3. Clause 6 of the Notification of the Government of India No. 4650, dated the 10th September 1889, prescribes a Court-fee of Rs. 2 on appeals from orders under Clause (c) of Section 244 of the Code of Civil Procedure, Act XIV of 1882. That Notification would, under the provisions of Section 157, apply to orders under Section 47(1) of the present Civil Procedure Code, which corresponds to Section 244, Clause (c), of the old Code. The question, therefore, is whether an order under Section 144 is an order which decides a question falling under Section 47(1) of the present Code.
4. Under Section 583 of the old Code an application for restitution was treated as an application for execution of the appellate decree and it was expressly provided that the Court shall proceed to execute the decree passed on appeal according to the rules for execution of decrees in suits. It was accordingly held in Gangadhar Marwari v. Lachman Singh 6 Ind. Cas. 125 ; 11 C.L.J. 541 that an order under Section 583 fell within the provisions of Section 244 (c), and, therefore, Clause (6) of the Notification applied.
5. Under the old Code, there was divergence of judicial opinion on the point whether a separate suit for restitution was or was not barred. That question has now been set at rest by Section 144(2) of the present Code.
6. It is true Section 144 of the present Code omits the provisions that the Court is to proceed according to the rules prescribed for the execution of decrees in suits, but it expressly lays down that no suit shall be instituted for the purpose of claiming any restitution which can be obtained by application under the section. The Court in making restitution has to execute the decree of reversal (which necessarily carries with it the right to restitution even though the decree may be silent as to such restitution) in order to give effect to the reversal of the decree. That being so, an order under Section 144 comes under Section 47(1) and Clause 6 of the Notification applies to such an order.
7. I think, therefore, that the Taxing Officer is right in holding that a Court-fee of Rs. 2 is chargeable on appeals from orders under Section 144 of the Code.