DAMODAR PRASAD Vs. RAM CHARAN DAS

JUDGEMENT

(1.) Plaintiffs, who are the petitioners, instituted a money suit, for recovery of Rs. 4266,/-, being arrears of house rent During the pendency of the suit, on the 8th July 1953, the defendants made an application under Order 23, Rule 3 of the Code of Civil Procedure, for recording a com. promise, alleged to have been arrived at betweefi the parties. The Court below, after hearing. tii& parties, on the 30th November 1953, allowed the application of the defendants, and, directed the compromise to be recorded; and as required by Rule 8, Order 23 of the Code; passed a decree in accordance therewith, which was signed on the 8th December 1953. On the 8th March 1954, the plaintiffs applied under Order 47, Rule 1 of the Code for a review of the order dated the 30th November 1953, on certain grounds. This application for review was registered aa Miscellaneous Case No.6 of 1954. The Court below by order of 26th June 1954, held that as this application has been filed beyond 90 'days of the judgment, sought to be reviewed, Sch. I, Article 4 (wrongly mentioned by the Court below as Article 2) of the Court-fees Act applied. The application for review was filed on the ninetieth day from the date of the decree. The Court below wrongly counted 90 days from the date Of the judgment, instead of from the date of the decree, as required by Article 4, Schedule I of the - Court-fees Act. The petitioners were, therefore, asked "to pay court-fee on the full value of the money suit''. Against this order, the petitioners have moved this Court in revision. After the above order, as the deficit court-fee, demanded by the Court below, was not paid, the application for review was dismissed for default on the 17th July 1954.

(2.) Mr. Mustafi, appearing for the petitioners, contended that Schedule II, Article 1 and not Schedule I, Article 4 of the Court-fees Act, applied to the application for review; and as such, the Court below has taken a mistaken view or the law.

(3.) The only question for determination, therefore, is whether the application, being one for review of judgment, should have been stamped ad valorem under "Article 4, Sch. I of the Court-fees Act. Article 4 of Schedule I provides that an application for review of judgment, if made, on or after the ninetieth day, from the date of the decree, should be stamped with the fee leviable on the plaint, or memorandum of appeal. Under Article 5. Schedule I, if such an application is made before the nintieth day from the date of the decree, then one-half of such fee is leviable.