KARNAIL SINGH Vs. KAPUR SINGH

JUDGEMENT

(1.) Reference dated 28-9-1979 by Prem Chand Jain and D. S. Tewatia, JJ.) The question that falls for determination in this appeal may be stated thus:-- "What court-fee would be payable on the memorandum of appeal filed against e final decree passed in a redemption suit when an appeal filed against a preliminary decree, on which ad valorem court-fee has been paid, i, still pending decision?"

(2.) The learned single Judge, against whose judgment the present appeal under clause X of the Letters Patent has been filed, has on the basis of a Division Bench judgment of the Lahore High Court in Budhuram v. Niamat Rai AIR 1923 Lah 632, held that a fixed court-fee would be payable on such a memorandum of appeal.

(3.) Mr. M. L. Sarin, learned counsel appearing for the appellants, has challenged the correctness of the aforesaid finding of the learned single Judge by contending that an appeal is filed against e decree and that there is no provision either in the Code of Civil Procedure or in the Court-fees Act permitting affixation of a fixed court-fee on s memorandum of appeal filed against a final decree where an appeal against a preliminary decree is pending decision. The learned counsel also submitted that the view taken in Budhuram's case (supra) does not lay down the correct law and deserves to be reconsidered.