SHEO NARAIN Vs. RADHEY SHYAM

JUDGEMENT

(1.) THE only point in this appeal is whether the Court-fees paid on the memorandum of appeal is sufficient. The respondent Lala Ram Kumar had filed a suit for recovery of Rs. 3, 500/-. The suit was decreed for Rs. 1, 750/- and the parties were directed to pay and receive costs according to their success and failures. The respon dent then appealed and paid court-fee of Rs. 1.50 paise on the memorandum of ap peal. An objection was taken before the District Judge Bahraich that the court-fees paid on the memorandum of appeal was in sufficient. According to the objection the valorem court-fees should have been paid on the amount decreed, that is, Rs. 1750/-. The respondent's contention was that he had not contested the amount decreed but had only filed the appeal against refusal to pass an instalment decree by the trial court. It was urged that the appeal could be treated as an objection under Section 47, Civil Pro cedure Code on which only a court-fees of Rs. 1.50 paise was payable. This contention was not accepted by the District Judge and he held that ad valorem court-fees should have been paid on the memorandum of ap peal, the same being valued at Rs. 1750/-. It is against this order that the present appeal has been filed.

(2.) THE argument of the learned coun sel for the appellant is that court-fees is payable under Article 17 Schedule II of the Court Fees Act, in force in the year 1965 when the appeal was filed, inasmuch as, ac cording to his submission it was not possible to estimate the subject-matter of the appeal at a money value. This contention appears supported by decision in the case of Deputy Commr. Kheri v. Raja Shantranji Ji, AIR 1940 Oudh 183. It was held in that case that where an appeal does not relate to the amount for which the decree has been passed but to the manner in which the decree can be enforced or executed, the appeal falls un der Article 17 (vi), Schedule II, Court Fees Act. On facts, which are analogous to the facts of the present case, in the case of Smt Sardar Devi v. Nihalkaran (AIR 1961 Raj 184), similar view was taken by the Rajas-than High Court. In that case the plaintiff-appellant had instituted a suit and obtain ed a decree for Rs. 11, 500/- principal plus interest at a certain rate upto the date of the institution of the suit and the date of the decree, thereby making a total sum of Rs. 12, 526.43 n. p. Thereafter the decree allowed interest to the appellant at 4% till realisa tion on the principal sum remaining due. The decree further allowed payment of the amount in instalments. Th petitioner ap pealed against the decree granting installments and paid a Court fess of Rs. 10/- only treating the memorandum of appeal as fall ing under Schedule JJ of Article 17 (vi) of the Court Fees Act. Objection was taken to the Court fees paid and it was urged that the appellant was liable to pay Court fees at the ad valorem rate on the difference between the amount claimed in appeal and the amount decreed and also on the differ ence to the appellant between getting his money off the date of the decree under ap peal and getting it by instalments as ordered. The contention that ad valorem court- fees was payable was not accepted and it was ob served that all the appellant suffers is that instead of getting the amount due at once the payment of the amount is postponed to certain periods by the instalments granted. In that situation the court held that it is difficult to put money value on the relief claimed by the appellant and held that memorandum of appeal fell under Article 17 (vi) of Schedule JJ of the Court-fees Act I am of opinion that in the present case also the appellant having questioned the trial Court's refusal to grant instalments this is a case where it is difficult to put a money value to the subject- matter of the appeal and the case was covered by Art. 17 (vi) Schedule II of the Court-fees Act. Under Article 17 (vp Schedule U of the Court-fees Act in a suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act, the court-fees payable is Rs. 10/-. The appellant's contention that he was liable to pay court-fees of Rs. 1.50 paise, the memorandum of appeal being treated as an objection under Section 47 Code of Civil Procedure, is clearly untenable. Therefore, while I do not agree with the lower ap pellate court's view that ad valorem court-fees was payable on the entire amount dec reed and hold that it is payable under Arti cle 17 (vi) Schedule H of the Court Fees Act, the Court-fees paid appears to be deficient even upon that view by Rs. 8.50 paise.