BAHURIA RAMSAWARI KUER Vs. DULHIN MOTIRAJ KUER

JUDGEMENT

(1.) This is an appeal against an order of the District Judge of Saran, rejecting a memorandum of appeal on the ground that it was insufficiently stamped. The learned advocate for the plaintiffs respondents has raised a preliminary objection that no appeal lies against such an order, citing in support Jnanadasundari Shaha V/s. Madhabchandra Mala . That however was a case in which the point actually decided was that though the District Judge had rejected a memorandum of appeal on the failure of the appellant to put in deficit court-fees by the time allowed, he had jurisdiction to entertain a fresh application for time under Order 7, Rule 13, applying Section 5, Limitation Act. In the case before us the District Judge rejected the memorandum of appeal as soon as the deficiency in court, fees was brought to his notice. In Suraj Pal Pandey V/s. Uttam Pandey A.I.R. (1922) Pat. 281, following the Allahabad and Madras rulings in Rup Singh V/s. Mukhraj Singh (1885) 7 All. 887 and Ayyanna V/s. Nagabhoosanam (1893) 16 Mad. 285, moreover it was held in this Court that an order of dismissal by a District Judge construed as an order rejecting a memorandum of appeal for the appellants failure to make up a deficit in court- fees is tantamount to a decree within the meaning of the Civil Procedure Code. An order of rejection passed without giving the appellant any time at all to make up the deficit would seem even more clearly to be a decree, for to such an order it is impossible to apply Order 7, Rule 13, the provision on which the decision in T.K. Rowlins V/s. Lachmi Narain Jha A.I.R (1918) Pat. 210, was rested. The learned Calcutta Judges did indeed make it clear that in their opinion the definition of "decree" in Section 2, as inclusive of the rejection of a plaint is not extended by Section 107(2), to the rejection of a memorandum of appeal. But the cases from Rup Singh V/s. Mukhraj Singh (1885) 7 All. 887, and Ayyanna V/s. Nagabhoosanam (1893) 16 Mad. 285 were decided under the Code of 1882 which provided that an order rejecting a plaint "is within the definition" of "decree" and this provision is substantially reproduced in the present Code, even though the clause defining decree" was materially modified in other respects in 1908.

(2.) It may at first sight seem rather strange that the rejection of a plaint should under Section 2, be deemed to include the rejection of a plaint and yet under Order 7, Rule 13, should not of its own force, preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action; but this is probably to be got over by a reference to the usual words in the defining Section ( Section 2), "unless there is anything repugnant in the subject or context." Be that as it may, the rejection of the memorandum of appeal in the present case was not rejection in any of the circumstances specified in any clause of Rule 11 of Order 7, as happened in Jnanadasundari Shaha V/s. MadhabchandraMala , and Rule 13 only refers to rejection on the grounds given in Rule 11. If it had been the intention of the Legislature to make the rejection of a memorandum of appeal, in circumstances to which Order 7, Rule 13 does not apply, non-appealable, the rulings under the Code of 1882 would, it may be presumed, have led to a material change as regards the rejection of a plaint in the definition of decree or to a clear provision to that effect somewhere else in the Code of 1908. From this point of view, it is impossible to hold that the rejection of the memorandum of appeal in the present case is not a decree (and is therefore not appealable as such) merely because Section 107(2) of the Code, as Suhrawardy J. pointed out, does not purport to give the order passed by an Appellate Court the same effect as an order passed by an original Court of a like nature.

(3.) The preliminary objection must therefore be overruled. The learned Government pleader, who appears for the appellants, began by endeavouring to show that the memorandum of appeal was not in fact insufficiently stamped. This is however opposed to an express decision of the taxing Judge in T.K. Rowlins v. Lachmi Narain Jha A.I.R. (1918) Pat. 210. The learned advocate referred to our recent Full Bench decision in Thakan Chaudhuri V/s. Lachhmi Narayan A.I.R (1934). Pat. 571, where several previous decisions relating to court-fees payable by a mortgagee decree-holder when he appeals or proceeds to execution were approved. But in the present case it was the defendants (the mortgagor and her transferees) that appealed to the lower Appellate Court. It has been pointed out in several cases that the relief that defendants in such suits have to seek from the Appellate Court is different from what a plaintiff appellant would have to seek. On this being realized, the point was not pressed, and it must be held that the appeal to the District Judge was not in fact sufficiently stamped.