PRABASH CHANDRA BHOWMIK(IN M.A.(F) 17 OF 1988) NANI GOPAL GHOSH(IN M.A.(F) 18 OF 1988) Vs. BISWA RANJAN DEB BARMA AND ORS.

JUDGEMENT

(1.) These two appeals have been filed under section 54 of the Land Acquisition Act, 1894 against a common order of the Land Acquisition Judge in a proceeding referred to him under section 30 of the aforesaid Act. The respondent have raised the question of court fee payable on the memoranda of appeal. The revenue of the State being involved notice was issued on the learned Advocate General to appear and assist the Court for deciding the question of appropriate court fee. Learned Advocate General has appeared accordingly. We have heard him as well as the learned counsel for the appellants.

(2.) In both the appeals the appellants have paid court fee of Rs. 10.00 and the case of their counsel is that this has been done as per Art. 11 of Schedule II of the Court Fees Act 1870, hereinafter the Act, as extended to Tripura. Though the office of the High Court accepted the memoranda of appeal taking them to have been sufficiently stamped, the contention of respondents is that in the cases of the present nature fixed court fee is not payable. According to them ad valorem court fee is payable on these memoranda of appeal as visualised by section 8 of the Act.

(3.) This is not for the first time that the question of court fee in the cases of the present nature has been raised. Such a question cropped up in MA(F) 27/83 when the stamp reporter stated that the appellant had not paid ad valorem court fee. A dispute relating to court fee having been raised, the matter was referred to the Registrar of this Court as taxing officer for his decision. The Registrar vide his order dated 1.9.83 came to the conclusion that the appeal attracted Art. 11 of Schedule II of the Act inasmuch as the judgment appealed against could not be termed as a decree. In coming to this conclusion reliance was placed on Diwan Brothers Vs. Central Bank of India, AIR 1976 SC 1503 . It may be stated here that a fixed court fee of varying amount is payable under the aforesaid Art. 11 on the memoranda of appeal "when the appeal is not from a decree or an order having the force of decree". It was, therefore, required to be adjudged whether appeal in question was from a decree, or an order having the force of a decree. The Registrar came to the conclusion that the appeal in question was not from a decree inasmuch as it was held in Diwan Brothers that the word "decree" as used in the Act is a term of art not having been defined by the Act, and so it must be deemed to have been used in the same sense as understood by the Code of Civil Procedure. It was then stated in Diwan Brothers that under the definition of "decree" contained in section 2(2) of the Code of Civil Procedure three essential conditions are necessary: