JAGJIT SINGH SAWHNEY Vs. DEWAN HUKAM CHAND

JUDGEMENT

(1.) The respondent has made this application in the appeal contending that there is no properly constituted memorandum of appeal as proper court fee has not been paid and the failure of the appellant to pay proper court fee has resulted in the appeal having become time-barred. The appellant contends that the appeal is under section 10 of the Delhi High Court Act, 1966 and the contentions of the respondent are not legally maintainable.

(2.) It is noticeable that the respondent, in his application, has not indicated the particular provision in the Court Fees Act under which court fee is payable. All that has been stated is that the appeal is "from a decree or at least an order having the force of a decree. In both cases, ad valorem court fee on the value of the suit in the original Court is payable on the memorandum of appeal." The respondent's contention, therefore, appears to be that the same court fee should have been paid on this memorandum of appeal under Schedule I Article 1 of the Court Fees Act as was paid by the appellant on the suit filed by him. The contention of the appellant is that the memorandum of appeal bears court fee under Schedule II Article 11 of the Court Fees Act as the appeal is not from a decree or an order having the force of a decree.

(3.) The suit. Suit No. 32 of 1967, was filed by the appellant against the respondent for specific performance of an agreement whereby the respondent had contracted to sell plot No. 53, Friends Colony, New Delhi, to the appellant in consideration of an amount of Rs. 3,95,000.00. Court fee on the suit was paid ad valorem on Rs. 3,95,000.00. A decree was passed in this suit in favour of the appellant on April 18, 1968 by Hardy J. for specific performance of the said agreement and four months' time was given to the appellant within which he was required to deposit in Court a sum of Rs. 3,55,000.00, being the balance of the purchase price after adjusting the earnest money of Rs. 40,000.00 and on such deposit being made the respondent was to execute the necessary sale-deed and get the same registered in favour of the appellant. Time for making the deposit was extended by a further three weeks' by an order dated August 22, 1968 passed by Kapur J. The appellant. however, failed to make the deposit even during the extended time.