BAJRANGI LAL Vs. MAHABIR KUNWAR

JUDGEMENT

(1.) Another question arises in connection with this second appeal. The appeal before us is an appeal against an order under Order XXXIV, Rule 5, of the Code of Civil Procedure. It was valued at Rs. 582-11-9 and was put in on a paper bearing a court fee stamp of Rs. 2. The office reported that the fee payable was Rs. 44-4-0 and that therefore the appellant had to pay a deficiency of Rs. 42-4-0. The appellant raised no objection and made good the deficiency. The stamp-officer of the Court then pointed out that for similar reasons the decree-holders, the respondents in this appeal, were liable to pay a court fee of Rs. 105, instead of the court fee of eight annas which they paid on their appeal in the court of the District Judge. There was, therefore, a deficiency of Rs. 104-8-0 due from them. The respondents contested this report, and the Judge of this Court, to whom a reference was made, and who happens to be the Taxing Judge of the Court, held that the matter was one for the Bench hearing the appeal. The learned vakil for the respondents contended before us that the fee which he had paid in the court of the District Judge was all that was required by law and there was no deficiency due from him. The question raised is not free from difficulty, and it will affect a large number of cases if this Court should hold that an appeal from an order absolute should bear the same fee as if it were an appeal from an original decree. The learned vakil asks us for time in which to prepare the case. We grant two weeks; but we think it would be well if we had another Judge to assist us in determining this question. We think that the learned Government Advocate should also appear in the interest of the revenue. We direct that these papers be laid before the Hon ble the Chief Justice with a request that a third Judge should be added to the Bench for the determination of this question.

(2.) The case was then laid before Knox, Tudball and Rafiq, JJ.

(3.) Babu Sital Prasad Ghose, for the respondent: