L SHANTILAL Vs. AGHA DOST MOHAMMAD KHAN

JUDGEMENT

(1.) The question of law which has been referred to this Special Bench may be stated as follows: When a Court of second appeal has remanded a case to the lower appellate Court under Order 41, Rule 23, Civil P.C. is the appellant entitled under Section 13, Court-fees Act, to a refund of the court-fee paid on the memorandum of appeal?

(2.) For the purpose of this reference we assume that the remand does not merely purport to have been made under Order 41, Rule 23, and that the remand was in fact made "on any of the grounds mentioned" in Order 41, Rule 23. On this assumption the-appellant is clearly entitled to a refund; if it is held that the suit" has been remanded to the lower eppellate Court. The word "suit" has not been defined for the purposes of the Court-fees. Act, nor is there any definition of that word in. the Civil P. C.. The argument of the stamp reporter implies that a "suit" terminates when the trial Court passes a decree and that further proceedings by way of appeal are not proceedings in the suit. On this view it is the appeal, and not the suit, which has been remanded to the lower appellate Court and consequently Section 13 does not in terms apply. We think that this view gives too narrow a meaning to the word "suit" and that proceedings in appeal, may be regarded as proceedings in the suit. When an appeal is admitted against the trial Court's decree the suit becomes sub-judice again. The appellate Court's decree does no doubt decide the appeal, but it also decides the suit. The appellate Court frequently, in so many words, decrees the suit" or "dismisses the suit" as the case may be. On this view the proceedings in first appeal and in second appeal are merely successive stages of the suit, and the suit does not terminate so long as any appeal is pending. There are indications in the Court-fees Act that the word suit" has been given a wide meaning and that an appeal is treated as a proceeding in a suit. In Schedule 2, Articles 4, 5 and 17, we find the expression "memorandum of appeal in a suit." The appeal may of course be a second appeal. So even a second appeal is spoken of as an appeal in a suit, implying that it is a proceeding in a suit.

(3.) Section 12(2) speaks of a suit coming before a Court of appeal. This also indicates that in the contemplation of the legislature the appellate Court deals with the suit, and that the appeal is only a proceeding in, or stage of, a suit. In Dayal Singh V/s. Ram Rikha [1898] 20 All. 362 it was expressly held by a Pull Bench of the Punjab Chief Court that in Secs.10(2) and 12 (2), Court-fees Act, the word "suit" includes an appeal, so that the appeal of a defaulting appellant must be dismissed on his failure to make up the deficiency in court-fees when called on to do so. Our own Court has, by implication, taken a similar view in Narain Singh v. Chaturbhuj Singh (1898) 20 All. 362 in which it was held that: if it were the appellant who was in fault and failed to pay the full court- fee due from him in the lower Court this Court certainly could stay the hearing of his appeal and, if the deficient fees were not paid, could dismiss his appeal, and no doubt would do so.