An order of dismissal for non-compliance with the order for payment of court-fee is not a decree within the meaning of the Code of Civil Procedure.

Alfred Henry Lionel Leach, C.J.

1. This matter has been placed before a Full Bench as it raises a question of importance under the Court-Fees Act and involves the consideration of certain Bench decisions of this Court. The petitioner was allowed to file an appeal in forma pauperis, but, at a later stage, it was discovered that he was not a pauper and an order was passed by Horwill, J., dispaupering him. In addition to directing that the petitioner should pay the appropriate court-fee on the memorandum of appeal the learned Judge directed him to furnish security for the costs of the respondent in the sum of Rs. 8,000 within three months from the 4th of November, 1937. This order was not complied with, and on the 4th March, 1938, the appeal was placed in the list of Venkatasubba Rao and Abdur Rahman, JJ., who passed the following order:

The security ordered has not been furnished. The appellant has been dispaupered. Both sides agree that the appeal has to be dismissed, and it is accordingly dismissed. We fix the advocates fee at Rs. 750. The appellant will pay to the Government the court-fee payable on the memorandum of appeal.

2. After the expiration of ninety days the petitioner presented a petition asking the Court to review its order dismissing his appeal. This petition bears a stamp of the value of Rs. 2, which the petitioner maintains is the proper court-fee by virtue of the provisions of Article 1 of Schedule II of the Court-Fees Act. The question of the correctness of the stamping having been raised, it was referred to the Taxing Officer, who held that the application should be stamped ad valorem under Article 4 of Schedule I of the Act. Article 1 (d) of Schedule II provides that a court-fee of Rs. 2 shall be paid on an application or petition when presented to a High Court. Article 4 of Schedule I states that on an application for review of judgment, if presented on or after the ninetieth day from the date of the decree, the fee leviable shall be the fee leviable on the plaint or memorandum of appeal. Therefore, the question is whether this Courts order of the 4th of March, 1938, dismissing the petitioners appeal for default in payment of the required court-fee and in furnishing the required security is a decree within the meaning of Article 4 of Schedule I of the Court-Fees Act. It has not been suggested that the word decree here has any different meaning from the word decree as defined by the Code of Civil Procedure. Section 2 (2) of the Code says:

Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include--

(a) any adjudication from which an appeal lies as an appeal from an, an order, or

(b) any order of dismissal for default.

3. Sub-clause (14) of Section 2 defines the word order as meaning the formal expression of any decision of a Civil Court which is not a decree.

4. The learned Government Pleader accepts the proposition that an order dismissing an appeal for non-compliance with an order requiring security is not a decree within the definition given in the Code. In fact there is ample authority of this Court and other High Courts that such an order is not a decree. The question was first raised in Lekha v. Bhauna I.L.R. (1895)All. 101 , where a Full Bench of the Allahabad High Court held that an order rejecting an appeal under Section 549 of the Code of Civil Procedure of 1882 (which corresponds to Order 41, Rule 10 of the present Code) was not appealable, either as an order or as a decree. The basis of the decision was that an order under S, 549 was not a final expression of an adjudication upon any right claimed or defence set up. In the Code of 1882 the definition cl