ALTAP ALI Vs. JAMSUR ALI

JUDGEMENT

(1.) The question before me arises out of an application for review of a decision of this Court dismissing a second appeal under Order 41, Rule 11 of the Civil P.O. The suit out of which the appeal arose was one for partition and the plaint and the memorandum of appeal bore a Court-fee stamp of Rs. 15 as required by Art. 17(vi) of Sch. II of the Court Fees Act as amended by the Bengal Act of 1922. The application was filed with a Court-fee stamp of Rs. 2, while the Stamp Reporter was of opinion that it should bear a Court-fee stamp of Rs. 15 under the provisions of Art. 4 of Sch. I of the Act, as the application was presented after the 90th day from the decision of this Court. The Taxing Officer referred the question under Section 5 of the Court Fees Act and the Chief Justice has appointed me for deciding the matter.

(2.) I heard the arguments of the learned vakil for the petitioners as well as of the Government Pleader on both sides of the question. The contention on behalf of the petitioner is that Section 4 of the Act directs the payment of fees as indicated either by the first or second schedule of the Act, and as the fee payable on the plaint in this case is under the second schedule which relates to "fixed fees" you cannot look to the first schedule, which refers to "ad valorem fees," for the purpose of levying fees on an application in a proceeding arising out of a plaint such as this. The headings of the two schedules form parts of the enactment and they refer to two distinct classes of documents, and in order to find what fee should be payable on this application one must be confined to the second schedule. That being so, the only provision applicable to this document is that under Art. 1(d)(ii) of the second schedule, which requires a fee of Rs. 2. It is further contended that a dismissal under Order 41, Rule 11, is not a judgment, but a mere order and as such it is not followed by a decree. Therefore, in any view, Art. 4 of Sch. I has no application to this petition.

(3.) The last contention may be disposed of first. That the dismissal of an appeal under Order 41, Rule 11 by this Court is a decree does not seem to admit of any argument at this time of the day. It falls within the definition of a decree in Section 2(2) of the Civil P.C. It was held to be a decree in the case of Uma Sundari V/s. Bindu Bashini [1897] 24 Cal 759 with reference to the corresponding Section 551 of the Code of 1882, where the practice of not drawing up decrees in such cases by the High Court was referred to. It may also be pointed out that this case has been followed in Muniswami V/s. Muniswami [1898] 22 Mad. 293 and Asma Bibi v. Ahmad Hussain [1908] 30 All. 290 and in a number of cases in this Court, the latest of which I found reported in Chandra Kanta V/s. Lakshman 21 C.W.N. 430. The expression of opinion dismissing the appeal is a judgment, although as matter of practice such judgments are not pronounced in the form prescribed under Order 41, Rule 31. This contention of the petitioner is, therefore, in my opinion without substance. This application is one for review of judgment.