(1.) IN A. S. No. 544 of 1961, we have held that the court fee payable on appeals from orders under the Companies Act was under Art. VI, sch. II of the T. C. Court Fees Act, 1125, corresponding to Art. XI, Sch. II of the INdian Court Fees Act. Raman Nayar, J. , in a note to the Registrar, pointed out that that ruling does not apply to appeals under the Banking Companies Act. Finding that on this appeal "under S. 45n of the Banking Companies Act, 1949", Court fee of rs. 2/- only has been paid, as if under Art. VI aforesaid, the office has made this reference.
(2.) ART. VI, Sch. II of the T. C. Court Fees Act, 1125 read thus: WI. Memorandum of Appeal, when (a) to any Civil Court, other the appeal is not from a decree than the High Court, or or an order having the force to any Revenue Court or of a decree and is presented. Executive Officer subordinate to the Government) One rupee (b) to the High Court or the the government. Two rupees. " Obviously, this ARTicle would not come into play if the order appealed against was one having the force of a decree.
(3.) IT is clear from the above provisions that orders under the Companies Act are only enforceable in the same manner as decrees, while orders under the Banking Companies Act have to be deemed to be decrees. That is a distinction which is not immaterial. That an order is allowed to be enforced in the manner in which decrees may be enforced is only a provision as to the procedure for its enforcement. As observed by Burkitt, J. , in ILR. 17 all. 238, with the concurrence of Knox J. and Blair J. , "the mode in which an order may be enforced is not necessarily an indication or a criterion of the nature of the order. There is a great difference and no inter-connection between the force of a decree and the method of enforcing it. " His Lordship observed that "the words 'having the force of a decree' are not very intelligible"; and expressed reluctance to say that an order that might be enforced in the same manner as a decree had the force of a decree. Much the same opinion was expressed by Sale J. , with the concurrence of Marten, J. , and Khosla J. , in Official Liquidator v. M. U. Qureshi (AIR. 1945 Lahore 146) when his Lordship observed: "s. 193 (the Indian Companies Act, 1913) does not say that such orders have the force of a decree; what it says is that 'all orders made by a Court under the Act may be enforced in the same manner in which decrees of such Court made in any suit pending therein may be enforced. ' IT would seem that the distinction between 'force' and 'mode of enforcement' was not present to the minds of the learned judges, who decided L. P. A. No. 116 of 1941. . . . There is a distinction, both real and practical, and not merely artificial, as the learned A. A. G. contends, between an order that has by statute the force of a decree and an order that may by statute be enforced in the same manner as a decree. . . . Our attention has been drawn to the expression used in Cl. (2) of S. 89, Lunacy Act, 4 of 1912 (which)lays down: such order shall be enforced in the same manner, and shall be of the same force and effect. . . . as a decree. We must presume that this declaration of the force of the order, and the provisions for its enforcement are not merely redundant but mean two different things. "