ORDER :- This is a reference under S. 5, Court-fees Act. The appellant in this case obtained a decree for specific performance of a contract of sale of some immovable property, valuing the suit at Rs. 75,000. The lower Court directed that the parties would bear their own costs. The appeal to this Court relates only to the order which in effect deprives the appellant of the cost which he would ordinarily expect to receive. The memorandum of appeal was filed with a court-fee stamp of Rs. 2 only. The Stamp Reporter demanded an ad valorem court-fee on the amount of costs. The matter was placed before the Taxing Officer and has now been referred to me for decision.

2. Two decisions of this Court relating to the matter of court-fees chargeable in respect of costs are referred to in the reference by the Taxing Officer, viz., a decision of Nasim Ali, J. in the case of F.A.T. No. 2488 of 1937 [Kshirode Chandra Sen v. Sm. Bhagbati Dasi] and a decision of Chatterjea, J. in the case of Kumari v. Rangpur North Bengal 25 CWN 934 : (AIR (8) 1921 Cal 55).

3. In the course of arguments my attention has also been drawn to a decision of Mitter, J. in the case of Jyoti Prosad v. Jogendra Ram Roy, 32 CWN 1105 : (AIR (15) 1928 Cal 878).

4. The case of Kamal Kumari Devi v. Rangpur North Bengal Bank, 25 CWN 934 : (AIR (8) 1921 Cal 55) arose out of a cross-objection where costs had been disallowed in a suit on a mortgage. Chatterjea, J. first considered the general question as to the liability for court-fees in respect of a dispute in appeal relating to costs whether alone or whether also joined with an appeal as to the main subject-matter. He pointed out that it had been the regular practice of this Court that in no case were any court fees charged in respect of a dispute as to costs where there was also an appeal with regard to the main subject-matter in dispute. He then discussed various cases of other Courts including in particular In re Makki, 19 Mad 350, and found that no distinction could be made between cases where the appeal related to the whole subject-matter of the original suit, or only to part thereof. In particular he cited as an example the case of a suit for Rs. 1,000 with a decree for Rs. 990, no costs being allowed. He pointed out that if there was an appeal in respect of Rs. 10 not allowed, as well as in respect of the whole costs, court-fees would be charged on Rs. 10 only. He also relied on two cases of the Privy Council on the question of the meaning of the "subject-matter in dispute" viz., Doorga Doss v. Ramanath 8 MIA 262 : (1 Sar 772) and Nilmadhab Dass v. Bishumbhar Doss, 13 MIA 85 : (3 Beng LR 27 PC).

5. This decision was referred to by the Taxing Officer in the reference before Nasim Ali, J., in the case of Kshirod Chandra Sen v. Sm. Bhagabati Dasi, in F.A.T. No. 2488 of 1937, but was not discussed by the latter. The case before Nasim Ali, J. related to an appeal against an award under the Land Acquisition Act, and was really disposed of as covered clearly by S. 8, Court-fees Act. Nasim Ali, J. observed :

"Where the relief as to costs is the only relief claimed in the appeal, the value of the subject-matter of the appeal is the amount of costs in dispute in the appeal. Further it is conceded by the learned Advocate for the appellant in this case that the subject-matter of the present appeal is really the difference between the amount awarded as compensation to the appellant and the amount claimed by the appellant in this appeal as the amount of costs is to be deducted from the amount of compensation claimed by the appellant."

6. It would seem, therefore, that although there was an observation by Nasim Ali, J. on the question which arises in the present case, the decision in the case was really based on S. 8, Court-fees Act.

7. The case of Jyoti Prosad v. Jogendra Ram Roy, 32 CWN 1105 : (AIR (15) 1928 Cal 873) was a partition case in which on appeal the only question in dispute was as to costs. Hitter, J. held that the case was n

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