ASHUTOSH BHATTACHARJEE Vs. SATINDRA KUMAR CHOUDHURY

JUDGEMENT

(1.) THIS is a reference under Section 5, Court -fees Act. The appellant; in this case obtained a decree for specific performance of a contract of sale of some immovable property, valuing the suit at Rs. 75,000. The lower Court directed that the parties would bear their own costs. The appeal to this Court relates only to the order which in effect deprives the appellant of the cost which he would ordinarily expect to receive. The memorandum of appeal was filed with a court -fee stamp of Rs. 2 only. The Stamp Reporter demanded an ad valorem court fee on the amount of costs. The matter was placed before the Taxing Officer and has now been referred to me for decision.

(2.) TWO decisions of this Court relating to the matter of court -fees chargeable in respect of costs are referred to in the reference by the Taxing Officer, viz., a decision of Nasim Ali J. in the case of F. A. T. No. 2488 of 1937 (Kshirode Chandra Sen v. SM. Bhagbati Dasi) and a decision of Chatterjea J. in the case of Kamal Kumari v. Rangpur North Bengal Bank Ltd. 25 C. W. N. 934 : (A. I. R. (8) 1921 Cal. 55).

(3.) THE case of Kamal Kumari Devi v. Rangpur North Bengal Bank 25 C. W. N. 934; (A. I. R. (8) 1921 Cal. 65) arose out of a cross -objection where costs had been disallowed in a suit on a mortgage. Chatterjea J. first considered the general question as to the liability for court -fees in respect of a dispute in appeal relating to costs whether alone or whether also joined with an appeal as to the main subject -matter. He pointed out that it had been the regular practice of this Court that in no case were any court -fees charged in respect of a dispute as to costs where there was also an appeal with regard to the main subject -matter in dispute. He then discussed various cases of other Courts including in particular In re Makki, 19 Mad. 350, and found that no distinction could be made between, cases where the appeal related to the whole subject -matter of the original suit, or only to part -thereof. In particular he cited as an example the case of a suit for Rs. 1,000 with a decree for Rs. 990, no costs being allowed. He pointed out that if there was an appeal in respect of Rs. 10 not allowed, as well as in respect of the whole costs, court -fees would be charged on Rs. 10 only. He also relied on two cases of the Privy Council on the question of the meaning of the 'subject -matter in dispute' viz., Doorga Doss v. Ramanath 8 M. I. A. 262 : (1 sar. 772) and Nilmadhab Dass v. Bishumbhar Doss, l3 M. I. A. 85: (3 Beng. L. R. 27 P. C.)