The distinction between appeals from orders and appeals from decrees, and the applicability of Articles 11 and 17a of the Court Fees Act, 1870, to such appeals.

MISRA, C. J.

( 1 ) RAM Kumari (appellant) is the married wife of Menaketan Meher (respondent ). She filed O. S. No. 58 of 1970 in the Court of the Subordinate judge, Aska, for a decree of divorce under Section 13 or the Hindu Marriage act, 1955 (hereinafter to be referred to as the Act ). The suit having been dismissed she has filed the appeal. On the memorandum of appeal Court-tee of rs. 6/- has been affixed, The Stamp Reporter is of the opinion that Court-fee of rs. 22/8/- is payable. He relied on an unreported decision of G. C. Das J. , the then Taxing Judge, in First Appeal No. 43 of 1963, decided on 14-12-1961 (Orissa) (Sripada Samba Siva Rao v. Sripada Subhalaxmi ). He referred the matter to the Taxing officer (Registrar ). The Taxing officer noticed apparent conflict in the aforesaid decision and another decision of Barman J. in 33 Cut LT 13 = (AIR 1967 Orissa 41) (Mst. Puinbasi Majhiani v. Shiba Bhue ). He referred the Matter to the Taxing Judge for an authoritative pronouncement. The Taxing judge S. K. Ray J. has referred the matter to the Division Bench. This is how the case has come before us.

( 2 ) MR. S. C. Mohapatra for the appellant contends that Article 11 of Schedule II of the Court-fees Act, 1870, as amended in Orissa, applies to this case while mr. R. K. Mohapatra, the learned Government Advocate, contends that Article 17a applies. To appreciate the rival contentions Articles 11 and 17a, so far as relevant, may be extracted:

Number 11. Memorandum of appeal when the appeal is from an order inclusive of an order determining any question under Sec-47 or Section 144 of the Code of Civil Procedure, V of 1908 and is presented. Proper Fee

(a)xx xx

(b)to a High Four rupees Court

By Orissa amendment fee has been enhanced to 1 1/2times. So it would be six rupees. Thus if Article 11 applies, six rupees court-fee affixed to the memorandum of appeal is correct. 17a. Plaint or memorandum of appeal in every suit where it is not possible to estimate at a money-value the subject-matter in dispute and which is not other-wise provided for by this Act.

When the plaint is presented to, or the memorandum of appeal is against the decree of (a) xx xx

? (b) any other Revenue Court , or any Court of a District Judge, Subordinate Judge, or Munsif. Fifteen rupees if the value for purposes of jurisdiction does not exceed four thousand rupees, one hundred rupees if such value exceeds Four thousand rupees

By Orissa amendment the fee has been enhanced to 11/2 times. The valuation in this case is less than four thousand rupees. If this Article applies then the Court-fee payable on the memorandum of appeal would be Rs. 22/8/ -.

( 3 ) THE only question, for consideration is as to which, of these Articles would apply to this case. Article 17a is a residuary Article and can be invoked only if article 11 is not applicable. We would accordingly proceed to analyse if Article 11 applies.

( 4 ) ARTICLE 11 on its clear language would apply to appeals from order only and not to appeals from decrees. By an inclusive definition orders passed under section 47 and Section 144 C. P. C. have been included in this Article though such orders constitute decrees.

( 5 ) SECTION 21 of the Act lays down that subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by civil P. C. 1908. Neither this Act nor the Hindu Marriage and Divorce Rules, 1956 prescribed under the Act by the High Court define decrees. In construing what is a decree, reference must be made to its definition in Section 2 (2), of the Civil P. C. "decree" under Section 2 (2), so far as relevant, 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