JAGARLAMUDI CHOWDARY Vs. STATE

JUDGEMENT

(1.) .This Court-fee reference raises as important question of practice. The matter may therefore be placed before a Bench for disposal and orders may be obtained from his Lordship the Chief Justice for its early posting. In pursuance of the abovesaid order this case came on for order before this Bench. The Court made the following

(2.) This S. R. has been placed before us on the direction of our learned brother, Venkatesam, J. and it raises a question as to the Court-Re payable by the appellant. The appellant is the decree-holder in O.S. No. 32 of 1956 on the file of the Subordinate Judge's Court, Bapatla. That suit was filed on 16th April, 1956 for a sum of Rs. 17,000 odd on the basis of a hire-purchase agreement between the plaintiff and one Sankara Rao, who was the defendant. That suit was decreed on 20th July, 1959 for Rs. 23,000. The decree-holder took out E.P. No. 19 of 1960 on 2nd August, 1960 and attached certain properties as belonging to Sankara Rao, the judgment-debtor. Thereupon, the widowed sister of the judgment-debtor filed E.A. No. 29 of 1960 on 5th September, 1960 setting up that the property attached belonged to her and that the judgment-debtor, Sankara Rao, had no manner of right or title thereto. That claim was dismissed by the Executing Court on 19th January, 1961. This led the to institution of O.S. No. 17 of 1962 under Oraer21, rule 63, Civil Procedure Code by the Unsuccessful claimant. The suit was decreed. The decree-holder in O.S. No. 32 of 1956 who is aggrieved by this decision in O.S. No. 17 of 1962, has filed the present appeal, which raises the question of the correct Court-fee payable on the memorandum of appeal. The question is whether the Court-fee payable on this appeal should be computed under the old Court-fees Act or under the new Court-fees Act which came into force on 1st May, 1956. The office took the stand that the court-fee on this appeal has to be paid according to section 38 (1) of the new Court-fees Act, viz., the Andhra Court-fees and Suits Valuation Act, 1956. Mr. Kuppuswami, the learned Counsel for the appellant, challenges the correctness of this stand. According to him, Court- fee has to be computed and paid under the provisions of the old Act which was in force till the expiry of 30th April, 1956. Reliance for this position is placed on subsection (2) of section 79 of the new Court-fees Act, which reads : "All suits and proceedings instituted before the commencement of this Act and all proceedings by Way of appeal, revision or otherwise arising therefrom, Whether instituted before or after such commencement, shall notwithstanding the repeal of the Court-fees Act, 1870 (Central Act VII of 1870) and the Suits Valuation Act, 1887 (Central Act VII of 18871, be governed by the provisions of the said Acts and the rules made thereunder." The plain grammatical meaning of the relevant words of this sub-section appears to us clearly to negative the contention of Mr. Kuppuswami. The old Court-fees Act has to govern the proceedings instituted before the commencement of the new Act and also the proceedings by way of appeal, revision or otherwise arising from those proceedings. In the instant case, the proceedings, which give rise to this appeal, can be taken to be only the claim proceedings under Order 21, rule 58, Civil Procedure Code. We do not find it possible at all to go further back. The claim proceedings were admittedly launched after the new Court-fees Act came into force. Therefore, the requirement of section 79 (2) of the Andhra Court-fees and Suits Valuation Act, 1956 that the proceedings must be instituted " before the commencement of this Act" is not satisfied in the instant case. It is only appeals, revisions or other proceedings which arise from the proceedings instituted before the commencement of the new Act that will be governed by the provisions of the old Court-fees Act. But in the instant case, as the initial proceedings themselves, if we may use that expression in the context, were commenced after the new Act came into force, the entire section 79 (2) becomes of no assistance to the appellant.

(3.) The argument that a suit to set aside an adverse claim order must be treated as a continuation of the claim proceedings or as an appeal against the claim order does not in any manner advance or improve the position of the appellant. This contention would have availed him only if the claim proceedings themselves had been instituted before the coming into force of the new Court-fees Act. But as in the instant case, the claim proceedings were preferred much after the new Court-fees Act began to operate, it is idle to go into the case-law which has held that a claim suit is a continuation of the claim proceedings or is in the nature of an appeal against the claim order It follows that the appellant has to pay Court-fees on his appeal under the provisions of section 38 (1) of the Andhra Court-fees and Suits Valuation Act, 1956. A period of one month is granted to the appellant for paying the deficit Court-fee. Office objection upheld.