KOCHUKOSHI Vs. KUNJU PILLAI

JUDGEMENT

(1.) In this second appeal preferred by defendants 1, 2, 4 and 6 to 10, the question raised is one of limitation. The Trial Courts decree in the case was passed on 1.8.1110. Against that decree the 2nd plaintiff had preferred an appeal to the District Court and that appeal was admitted and registered as A.S. No. 620/1110, but it was eventually dismissed on 25.3.1111 on account of the failure of the appellant to pay the deficit court fee due on the memorandum of appeal, within the period fixed by the Court. When the decree holder filed the present execution petition on 24.3.1123, the defendants raised a plea of limitation and contended that the execution petition having been filed after the lapse of 12 years from the date of the Trial Courts decree, is out of time and unsustainable. The decree holder replied that the period of limitation for execution of the decree has to be computed from 25.3.1111, the date on which A.S. No. 620/1110, the appeal against the Trial Courts decree was dismissed by the appellate court, and that there is no bar of limitation for the present execution petition filed within 12 years from that date and also within three years from 9.6.1122 the date of the dismissal of the prior execution petition. The execution court accepted the contentions of the defendants and held that the execution petition filed on 24.3.1123 is out of time. The lower appellate court, however, took a different view of the matter and held that the starting point of limitation for execution petition is the date of dismissal of A.S. 620/1110 and that the present execution petition is within time. The correctness of this view is challenged in this second appeal.

(2.) The question for consideration is whether the execution of the decree in this case is governed by Art. 182(2) of the Limitation Act. The provision in Cl. (2) of that Article is to the effect that where there has been an appeal, the date of passing the decree or order by the appellate court or the date of withdrawal of the appeal should be the starting point from which the period of limitation for execution has to be computed. If it can be said that there has been an appeal against the Trial Courts decree in this case as contemplated by Art. 182, the decree holders execution petition filed on 23.4.1123 has to be held to be within time. But it is urged on behalf of the appellants that since the appeal preferred by the decree holder, A.S. No. 620/1110, was dismissed for nonpayment of deficit court fee due on the appeal memorandum, it cannot be said that there has been an appeal in the proper sense of the term. The question therefore resolves to this: When can it be said that there has been an appeal There is no definition given to the word appeal in the Civil Procedure Code. But there are enough provisions in the Code indicating the conditions to be satisfied in order that it can be said that there has been an appeal in any particular case. The right of appeal against the decree passed by any Court is conferred by S. 96 of the Code. In Cl. (1) of that section it is laid down as follows:

(3.) It is however argued on behalf of the appellant that in view of the mandatory provisions contained in the Court Fees Act the payment of the court fee payable on the memorandum of appeal is the essential condition to be satisfied before the memorandum of appeal is admitted and filed as an appeal. So far as the present appeal is concerned the Court Fees Act, which was in force during the relevant period was Act VI of 1087 of Travancore. S. 3 of that Act contains a provision similar to that contained in S. 2 of the present Act, Act II of 1125. The provision is to the effect that no document of any of the kinds specified in the first or second schedule to the Act annexed as chargeable with fees shall be filed, exhibited or recorded in any court of justice unless in respect of that document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. A memorandum of appeal is one of the documents specified in the 1st schedule annexed to the Court Fees Act. In view of the mandate contained in S. 3 of the Court Fees Act the court could refuse to accept the Appeal Memorandum presented to it unless the required court fee is also paid. If the court refuses to accept the memorandum of appeal or returns or rejects the same for the reason of the non payment of the court fee due on it the result will undoubtedly be that there has been no appeal. But what would be the position in respect of a memorandum of appeal admitted by the court and registered as an appeal even before the levying of the court fee due on it Can it be said that there has been no appeal at all unless and until the full fee due on the memorandum of appeal is paid There is nothing in the Civil Procedure Code to indicate that only after payment of the full fee due on a memorandum of appeal can it be admitted and registered as an appeal. On the other hand there are provisions in the Code sanctioning the acceptance and registering of plaints and memoranda of appeals without the levy of the prescribed court fee; such are the provisions contained in Orders 33 and 44 of the Code. The provisions in these Orders sanction the filing of suits and appeals informa pauperis and the consideration of such suits and appeals even before the levy of the prescribed court fee. No doubt these provisions are exceptions to the general rule. All the same it is clear from these provisions that there could be suits and appeals even before the levy of the proper court fee due thereon. Such fee is normally to be recovered before or at the time of filing the suit or appeal. In exceptional cases the fee may be recovered at some stage subsequent to the filing of these documents. The levy of the prescribed fees at either of these stages would be sufficient to satisfy the requirements of the Court Fees Act. Necessarily it does follow that the payment of such fee cannot be a factor determining the question whether there has been a suit or an appeal in any particular case. S. 149 of the Civil Procedure Code empowers the court to validate the proceedings already commenced on the basis of a document in respect of which the prescribed court fee has not been paid, by permitting the payment of such fee within a time fixed by the Court. The provision is as follows: Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part as the case may be, of such court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. Thus if a memorandum of appeal happens to be admitted and registered as an appeal without levying the prescribed court fee the defect could be allowed to be remedied at any subsequent stage, when the same is brought to the notice of the court. The position taken up by the appellant is that only when the defect is thus cured can it be said that there is an appeal. The decision of a Full Bench of Allahabad High Court in Harihar Prasad Singh v. Beni Chand (AIR 1951 All. 79) is relied on in support of that position. The view taken in that case is that S. 149 of the Civil Procedure Code has to be read as a proviso to the section of the Court Fees Act which prohibits the court from filing, exhibiting or recording a document unless the prescribed court fee has been paid. Accordingly it is stated that when any such document happens to be received and filed in court it must be deemed to have been received merely for the purpose of enabling the party to pay up the prescribed fee within a time to be fixed by the court as contemplated by S. 149 of the Civil Procedure Code. With all respect to the learned Judges who took part in that decision we have to point out that S. 149 as it stands does not warrant such a narrow and restricted construction being put up in it. It is expressly stated in the Section that the Court may in its discretion permit the party to pay the court fee at any stage. The expression at any stage indicates that it does not contemplate a case where the document is received and retained merely to enable the party to pay the court fee within the period to be fixed by the court. That contingency can arise only at the initial stage when it is known that the court fee due on the document has not been paid. In that case the court can certainly insist on the payment of the court fee before admitting and filing the document. S.149 contemplates a case where the nonpayment of the required court fee is detected or brought to the notice of the court at some stage subsequent to the admission and filing of the document. There is a corresponding provision in the Court Fees Act also enabling the court to regularise the proceedings already commenced on the basis of a document not properly taxed, by permitting the fee due thereon to be paid within the time fixed by the Court. That provision is contained in S. 19 of the Act VI of 1087 corresponding to S.32 of Act II of 1125. The relevant provision is as follows: