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1945 Supreme(Mad) 165
IN THE HIGH COURT OF MADRAS
Happell, J.
In Re: Shanmugham alias Muthukaruppan
Versus
Decided On : 09.04.1945
An order on an application for a decree under Order 34, Rule 6 of the Civil Procedure Code is considered a 'decree' and therefore an appeal from such an order must bear an ad valorem court-fee stamp.
Headnote:
Court Fees - Civil Miscellaneous Appeal - Summary
Fact of the Case:
The appellant sought to appeal an order made by the Subordinate Judge regarding recognition of assignment of a decree and passing a personal decree.
Finding of the Court:
The court held that an order on an application for a decree under Order 34, Rule 6 of the Civil Procedure Code is considered a 'decree' and therefore an appeal from such an order must bear an ad valorem court-fee stamp.
Issues: The issue was whether the appellant is entitled to file a civil miscellaneous appeal and pay a lesser court-fee or must file a regular appeal and pay an ad valorem court-fee.
Ratio Decidendi: The court followed the precedent that an appeal from an order on an application for a decree under Order 34, Rule 6 must bear an ad valorem court-fee stamp, and the appellant cannot file a civil miscellaneous appeal and pay a lesser court-fee when attacking the personal decree itself.
Final Decision: The appellant was not permitted to file a civil miscellaneous appeal and pay the lesser court-fee, and two weeks were allowed for payment of court-fee as for a regular appeal.
Happell, J.
1. The question is whether the appellant is entitled to file a civil miscellaneous appeal and pay court-fee accordingly or whether he must file a regular appeal and pay an ad valorem court-fee. The order made by the Subordinate Judge against which it is now sought to appeal was made on an application by an assignee-decree-holder for recognition of the assignment in his favour and for passing a personal decree; and the application was stated to be made under Order 21, Rule 16 and Order 34, Rule 6 of the Code of Civil Procedure. The order of the Principal Subordinate Judge was that a personal decree was granted for the amount claimed personally against the first defendant and against the joint family properties of defendants 1 and 2. In his appeal petition, the appellant attacks not only the assignment of the decree but the personal decree itself. It was held by the Allahabad High Court in Muhammad Iltifat Husain v. Alim-un-Nissa Bibi I.L.R.(1918) All. 553 that an order on an application for a decree under Order 34, Rule 6 of the Civil Procedure Code is a "decree " as that term is defined in the Code and that therefore an appeal from such an order must bear an ad valorem court-fee stamp. This decision, to the best of my knowledge, has always been followed in practice in this Court. It is not necessary to decide what would be the position if the appellant had confined his appeal grounds to an attack on the assignment of the decree. As already stated he attacks the personal decree itself and, that being so, he cannot be permitted to file a civil miscellaneous appeal and pay the lesser court-fee merely because in one application orders were prayed for an assignment of the decree under Order 21, Rule 16 and for a personal decree under Order 34, Rule 6. The view taken by the office is correct and ad valorem court-fee as for a regular appeal must be paid.
2. Two weeks is allowed for payment of court-fee.
