DEVI CHARAN LAL Vs. B HARCHARAN LAL

JUDGEMENT

(1.) This is an appeal under Section 6 (a), U. P. Court-fees Act against an order of the learned District Judge of Moradabad requiring the appellants to pay further court-fee on their memorandum of appeal filed before him. The appellants were co-debtors of the principal landlord-applicant in certain proceeding under the Encumbered Estates Act, Under Section 9 of the Act the learned Special Judge had determined the proportionate liabilities of the applicant. This determination was challenged in appeal by the appellants before the learned District Judge. Treating the appeal as one only against an order, the appellants had paid the usual court-fee.

(2.) The office reported that ad valorem court-fee was required, inasmuch as the appellants had sought the cancellation of the decrees which, rightly or wrongly, had been passed by the Special Judge. The learned District Judge agreed with this report, and ordered that the appellants should pay ad valorem court fee on the decrees which they wanted to avoid by filing the appeal. The present appeal is against that order.

(3.) The question as to what court-fee was in fact payable on the memorandum of appeal filed by the appellant in the lower appellate Court depended entirely on the nature of the order appealed against. There can be no doubt that the order in question was one determining the amount payable by the appellants to the creditors. The learned counsel for the appellants has argued that, even as an order determining this amount, it was only an order and nothing more. It was, he continued, not a decree or even an order having the force of a decree. The question whether the order was a decree or not would depend for its answer on a consideration of certain provisions of Section 9 and also of Section 11, Encumbered Estates Act. In the former section, under Clause (c) to Sub-section (5), it is provided that, in case no suit has already been filed by the creditor to recover the amount, he has to file a suit to recover the same as determined by the Special Judge under Sub-section (5) of that section, and that in a case where a creditor has already obtained a decree, he was to apply for execution of that decree, but that the amount recoverable would be what has already been determined by that Judge under the said sub-section. This means that a mere order determining the proportionate amount payable by the applicant, debtor and that payable by the non-applicant-debtor is not the final order, in the sense that, by executing the same, the creditor may recover the amount due to him straightway. He has further to have resource to an independent remedy provided in Clause (c), as mentioned above, having to resort to a different proceeding, in the one case, a suit, and in the other, an application for execution, as the case may be. The provision in Section 11 of the Act, which also has a bearing on this question, is contained in Sub-section (4) thereof. It provides that: