BAIJNATH DAS Vs. BALMUKAND

JUDGEMENT

(1.) The question for decision in this reference is whether an appeal from an order passed on an application for restitution under Section 144 of the Civil Procedure Code requires to be stamped ad valorem under Art. 1 Schedule 1 of the Court Fees Act as an appeal from a decree, or can be filed as an appeal from an order in execution on a Court-fee of Rs. 2. The suit out of which the reference arises was one claiming a declaration that the plaintiff was an owner in possession of a house which had been sold in execution and bought by the defendant-appellant. The first Court dismissed the suit. In appeal the suit was decreed for a one-third share in the house. The defendant had obtained possession of the entire house under the Trial Court's decree. The order under appeal has granted the plaintiff possession of a one-third in the house by way of restitution. The appellant's case is that the plaintiff could only obtain possession of his one-third share by means of a suit for partition.

(2.) The question of law does not admit of any doubt. Orders under Secs.47 and 144 are expressly declared to be decrees by Section 2 of the Code. In the absence of any provision to the contrary appeals from decrees require to be stamped ad valorem. The fee payable on appeals under Section 47 would be ad valorem, but that it has been specially reduced by the Governor in Council by Notification No. 1231 VII of the 11 October 1923 under the powers conferred by Section 35 of the Court Fees Act as amended by the Devolution Act of 1920. No similar reduction has been made in the case of appeals under Section 144.

(3.) In order to claim exemption from an ad valorem fee the objector is compelled to argue that all orders under Section 144 are orders in execution falling also under Section 47. There was at one time some difference of opinion even in this Court as to whether orders under Section 144 were to be treated as orders in execution, and the objector is able to cite one decision, Gokal Prasad V/s. Ram Devi 63 Ind. Cas. 513 : 19 A.L.J. 771 : 3 U.P.L.R. (A.) 126, in his favour, but the opposite view is now generally accepted and has been adopted by this Court in two cases, Jiwa Ram V/s. Nand Ram 66 Ind. Cas. 114 : 20 A.L.J. 226 : 44 A. 407 : (1922) A.I.R. (A.) 223, and Brij Lal V/s. Damodar Das 66 Ind. Cas. 515 : 20 A.L.J. 458 : 4 U.P.L.R. (A.) 74; (1922) A.I.R. (A.) 238 : 44 A. 555, and by the Patna High Court in an elaborate Full Bench decision in Balmilkanda, Marwari V/s. Basanta Kumari Dasi 78 Ind. Cas. 200 : 3 Pat. 371; (1924) Pat. 33 : 5 P.L.T. 145. The question has usually arisen with reference to limitation whether an application would be barred if it falls under Art. 181 of the Limitation Act but in time if it can be traced as an application for the execution of a decree under Art. 182. The principle of these decisions is equally applicable to the question of Court fees.