TAXING OFFICER HIGH COURT Vs. JAMNADAS DHARAMDAS

JUDGEMENT

(1.) THIS Reference has been made by the Taxing Officer to resolve a dispute as to the proper court-fees payable on memoranda of appeals filed against "decrees" passed in proceedings under the Displaced Persons (Debts Adjustment) Act, 1851. The decrees sought to be challenged in appeals to this Court were passed either under Section 10 or under Section 13, Displaced Persons (Debts Adjustment) Act. It was urged on behalf of the appellants that the appeals are not required to be stamped ad valorem under Schedule I, Article 1 Court-fees Act and that the demands made by the Registrar of this Court for payment of Court-fee ad valorem on the value of the subject-matter is unjustified. The matter was referred to the Taxing Officer and he has made this reference.

(2.) IN order to appreciate the contentions which have been raised, it is necessary to refer to relevant provisions of the Displaced Persons (Debts Adjustment) Act (No. 70 of 1951 ). Sub-section (8) of Section 2 defines a "displaced creditor" and Sub-section (9) of that section defines a "displaced debtor". Subsection (12) defines a "tribunal" as being any civil Court specified under Section 4 having authority to exercise jurisdiction under the Act. Section 3 provides that the provisions of the Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent herewith contained in any other law for the time being in force, or in any decree or order of a Court, or in any contract between the parties. Section 4 authorises the State" Government to specify any civil Court or class of civil Courts as the tribunal or tribunals having authority to exercise jurisdiction under the Act and also authorises the State Government to define the areas in which and the extent to which such jurisdiction may be exercised. By Section 5, a displaced debtor is given the right to make an application for adjustment of his debts to the Tribunal within the local limits of whose jurisdiction he actually resides. Sub-section (2) of Section 5 provides what an application made by a displaced debtor shall contain, By Sub-section (1) of Section 9 it is provided that if there is a dispute as to whether the applicant is a displaced person or as to the existence of the amount of the debt due to any creditor or the assets of any displaced debtor, the Tribunal shall decide the matter after taking such evidence as may be adduced by the parties concerned and shall pass a decree in relation thereto as it thinks fit. By Sub-section (2) of Section 8, it is provided that if there is no dispute or if the respondents do not appear or have no objection to the application being granted, the Tribunal may, after considering the evidence placed before it, pass a decree in relation thereto as it thinks fit. It is evident from the terms of Section 9 that the Tribunal is entitled in cases where there is a dispute as also in cases where there is no dispute to pass a decree in favour of a displaced debtor who has applied for adjustment of his debts. Section 10 provides for adjudication of claims made by displaced persons against displaced debtors. By Section 11 it is provided that where an application is made under Section 10 the Tribunal shall require the displaced debtor to show cause against the application or to make an application under Section 6. Under Section 13, a displaced creditor may make an application claiming a debt from any other person who is not a displaced person, and by Section 14 it is provided that, the Tribunal may, after taking such evidence as may be produced before it, pass a decree in relation "thereto as it thinks fit. It appears that Section 9 authorises the Tribunal to pass a decree for adjustment of debts of a displaced debtor; Section 10 provides for adjudication of claims by displaced creditors against displaced debtors and for passing decrees thereon, and Section 13 provides machinery for adjudication of claims by displaced creditors against non-displaced debtors. Section 21 authorises the Tribunal, on the application of a displaced debtor, to bring a decree passed by a Civil Court in accord with the provisions of the Act. That provision is in substance a corollary to Section 3 of the Act. By Section 35, all proceedings under the Act, save as otherwise expressly provided in the Act or in any rules made thereunder, shall be regulated by the provisions contained in the Code of Civil Procedure. Section 27 provides that the Tribunal passing a decree on the application of a displaced person, shall prepare a complete schedule of the creditors and of the assets and liabilities of the displaced person. Decrees and orders passed by the Tribunal are by Section 28 of the Act made executable by the Civil Court which is specified as the Tribunal in the same manner as it could have done if they were decrees or orders passed by it as a Civil Court. Chapter III, which includes Sections 29 to 39, provides inter alia for machinery for adjustment and scaling down of debts. It also provides for cessor of interest, exemption from arrest of displaced person and exemption from attachment of certain property of a displaced person. The Chapter also provides for making orders for payment of the amount directed to be paid by instalments and for variation of maintenance allowances and extension of the period of limitation in certain matters. Chapter IV deals with appeals and enables appeals to be filed against final decrees or orders of the Tribunal and orders made in the course of execution of decrees or orders of the Tribunal, which if passed in the course of execution of decrees or orders of a civil Court are appealable under the Code of Civil Procedure.

(3.) THE adjudication by the Tribunal whether it is on an application under Section 5 by a displaced person or on an application under Section 13 by a displaced creditor against a non-displaced person is called a decree. A decree passed by the Tribunal is made executable by Section 28 by the Civil Court which for purposes of the trial of the application is a Tribunal, as if it is a decree or order passed by it in its ordinary jurisdiction and the decree is made appealable to the High Court within whose jurisdiction the Tribunal functions. The question which is to be determined in this reference is whether on a memorandum of appeal under Section 40 the appellant is required to pay court-fee ad valorem on the value of the subject-matter under Schedule 1, Article 1, Court-fees Act or a fixed fee under Schedule II, Article 11, Court-fees Act or any court-fee at all. It is the contention of the learned Assistant Government Pleader that court-fee on the memo of appeal is payable on the value of the subject-matter of the appeal under Schedule I, Article 1. It is contended by Mr. Jethmalani on behalf of the appellants that no court-fee at all is payable, because the provisions of the Court-fees Act do not apply to appeals filed under the Displaced persons (Debts Adjustment) Act. In the alternative it is contended by Mr. Jethmalani that if the provisions of the Court-fees Act do apply a fixed court-fee under Schedule II, Article 11, Court-fees Act will be payable on the memo of appeal.