RUKAM KANWAR Vs. PANNA RAMDAN

JUDGEMENT

(1.) THE facts that give rise to this second appeal may briefly be stated thus : THE appellant presented an application to the Collector, Jhunjunu for recovery of rent from her tenants as arrears of land revenue under sec. 126 of the Jaipur State Grants Land Tenures Act. As a result of the enquiry the Collector held that the application was untenable as is was proved that the tenants had paid the rent for Svt. 2007 like previous years to the thikanedar and obtained receipts from him as usual in the bonafide belief that he was entitled to collect the same from them. THE application was accordingly rejected. THE appellant went up in appeal before the Additional Commissioner and paid a fixed court fee of Re. 1/- only on the memorandum of appeal. An objection being taken as to the insufficiency of- court fee. the learned Additional Commissioner held that an ad valorem court fee should be paid by the appellant. Hence this appeal.

(2.) WE have heard the learned Counsel appearing for the parties and have examined the record as well. The court fee in respect of an application under sec. 126 of the Act as given in Item 2 Group C. Schedule 1 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, has been fixed on the amount of rent to be realised, i. e. on ad-valorem basis. It therefore, follows that in the ordinary course of procedure the proper fee in respect of a memorandum of appeal will be the same as on the original application, i. e. on an ad valorem basis as laid down in Item 1, Schedule I of the Court Fees Act which runs as follows: "plaint, written statement, Pleading a set off or counter claim or memorandum of appeal not otherwise provided for in this Act. " The appellant's main contention however, is that the order of the Collector in this case being neither a decree, nor an order having the force of a decree, an appeal against it has not to be valued in accordance with Item 1 Schedule I but according to Item 11 Schedule II which reads as below: - "memorandum of appeal when the appeal is not from a decree, or order having the force of a decree. . . . . . . . . . . . . . . ". Thus the only question to be determined in the case is as to whether the order of the Collector in the case can be deemed to be a decree or an order having the force of a decree. It is conceded by the learned counsel that the order of the Collector is definitely not a decree and we are also in agreement with this view. On behalf of the appellant a number of authorities of the Indian High Courts have been cited before us. In a Full Bench decision of the Lahore High Court reported in A. I. R. , 1945 Lahore 146, a similar question arose and it was observed therein that, "there is a distinction, both real and practical, and not merely artificial between an order that has by statute the force of a decree and an order that may by statute be enforced in the same manner as a decree. An order that is given by statute the force of a decree is an order that propria vigor stands as a decree whatever the consequences whereas an order that may by statute be enforced as a decree is an order that may be of little or no effect, proprio vigore, and only becomes effective, when executed by the method by which a decree may be executed. In other words, it is a mere shadow unless and until life is infused into it by an application for execution, it is a well recognised rule of interpretation of statutes that there is a presumption that the Legislature means different things by different phraseology; and when it describes an order as having the force of a decree it must mean something different from the description of an order which may be enforced in the same manner as a decree". In A. I. R. 1954 Hyderabad 18, which is also a full bench decision in a case arising under the rules sanctioned by the H. E. H. Nizam for recovery of arrears of rent and ejectment from premises belonging to the City Improvement Board, it was decided that, "it is obvious from the definition that in order that a decision of a Court may be a decree, there must be an adjudication in a suit conclusively determining the controversial right of the parties and a formal expression of it. 'order' is defined in sec. 2 (14) G. P. G. , to mean the formal expression of any decision of a Court which is not a decree. Rejection of a plaint or determination of any question falling under secs. 47 or 144, because they do not fall within the ambit of the main part of the definition would have amounted to mere orders, but the Legislature gave them the force of a decree by including them in the aforesaid definition. It would thus appear that every order by itself does not fulfil the essential elements of a decree. In order to make the order have the force of a decree, the law must expressly say so. " As against this reliance has been placed by the respondents' counsel on A. I. R. 1938 Allahabad 14 and A. I. R. 1944 Oudh. 113. In the former case a mortgagor made an application under sec. 12 - U. P. Agriculturists Relief Act, for the redemption of his mortgage by payment of a certain sum. The Assistant Collector decided that a greater amount was due and ordered the mortgagor to deposit the balance. An appeal was preferred under sec. 33 of the Act and a court fee of As. 12 was paid. It was held that ad valorem court fee should have been paid as the order had the force of a decree as it had the same effect as a decree for redemption. In the latter ease, an order passed by the court under sec. 12 Agriculturists Relief Act, was held to have the force of a decree for redemption of a mortgage passed in a regular suit in Civil Court and therefore adequate court fee was payable in appeal from such order. Both these decisions have little or no similarity with or bearing upon the present case. In the present case the appellant applied for recovery of rent as arrears of land revenue and it was held after the enquiry that the respondents were not liable to pay the rent as they had already paid the same to the thikanedar in the bonafide belief that the Thakur was entitled to receive it. This, order of the Court was a complete adjudication of the claim of the appellant in so far as the realisation of the arrears was concerned, and although this order was enforceable and executable in the same manner as a decree by virtue of sec. 126 of the Jaipur State Grants Land Tenures Act, it cannot be held an order having the force of decree within the meaning of sec. 2, Item 11 as we are in respectful agreement with the views expressed by the learned judges of the Hyderabad High Court. In the result we allow this appeal, set aside the order of the Additional Commissioner. Jaipur, and direct that the fee payable in the appeal filed before him shall be a fixed fee as laid down in Item 11, Schedule II of the Court fee Act. .