DAMISETRI SATYANARAYANA MURTHI Vs. DAMISETTI BHAVANNA

JUDGEMENT

(1.) The Taxing Officer has made this reference under section 5 of the Court-Fees Act. The question that arises for decision is, whether in respect of an appeal filed against a final decree in a partition suit, Court-fee is payable under bchedule II, Article 17-B of the Court-Fees Act, or ad valorem Court-fee should be paid on the amount decreed against him under Article 1, Schedule 1. The taxing officer referred this matter to me on the ground that the decisions of Krishnaswarm Nayudu, J., in Velttchami Pillai v. Sankaralingam1, and Chandra Reddy, J., in Kamalam i. (1949) 3 M.L.J. 782. v. Saradambal, (1953) 1 M.L.J. 135. are in conflict with an earlier Bench decision in Balarama Naidu v. Sangan Naidu, (1921) 42 M.L.J. 184 : I.L.R. 45 Mad. 280. Section 5 of the Court-Fees Act in so far as it is relevant, is in the following terms :-

(2.) In exercise of the powers conferred by section 5, the Chief Justice of the Andhra High Court has appointed the Deputy Registrar, Sri V. Krishnaswamy, as the taxing officer. As, in his opinion, the question arising for decision in the case was one of general importance, there being conflict of authority, he referred the matter to me as the Taxing Judge as the Chief Justice has by a general order directed that all references under section 5 of the Court-Fees Act should be placed before me for final decision.

(3.) One of the questions that was debated before me was, whether, in exercise of my powers as the Taxing Judge under section 5, it is open to me to refer the matter to a Division Bench or a Full Bench of this Court in order to solve the conflict of authority. The contention that was put forward by Sri K. Ramachandra Rao, the learned advocate for the petitioner, was that, under the terms of section 5, the Taxing Judge acts as a persona designata and not as a Judge of the High Court and that he is not entitled to refer the matter to a Bench under rule 1 of the Appellate Side Rules. There is considerable force in this argument. Rule 1 sets out the several matteis which a single Judge might hear and dispose of and the reference under section 5 of the Court-Fees Act is not mentioned as one of such matters in that rule. The power of a Judge of the High Court to decide the reference is derived specially, i.e., by the appointment or nomination by the Chief Justice, under the terms of section 5. Under section 5 it is no doubt open to the Chief Justice to appoint a Judge of the High Court either generally or specially as the Taxing Judge. The right to hear the reference springs into existence only when the taxing officer makes the reference on the ground that the question involved is in his opinion, one of general importance. He might refer the question to the final decision of the Chief Justice or of such Judge of the High Court as the Chief Justice might appoint, either generally or specially. On the plain language of the section, once the question is referred to the Taxing Judge, he is bound to decide it and he is not entitled to say that the question is one of great difficulty and that the matter should be settled by a Division Bench or a Full Bench of the High Court.