1986 Supreme(MP) 626

IN THE HIGH COURT OF MADHYA PRADESH
C.P. SEN, TAXING, JJ.
Sant Prasad Pande - Appellant
Versus
Smt. Indira Bai Sarwate - Respondent
L.P. A. No. 19 of 1984 (J)
Decided On : 24-07-1986

Headnote:(1) Letters Patent Appeal (M.P.) – Cl. 10 – appeal under – is against judgment and decree – ad – valorem Court – fee is payable.

       (2) Court fees Act, 1870 – Sch. I, Art. 1 and Sch. II, Art 11 – letters patent appeal – ad – valorem Court – fee is payable under Sch. I, Art. 1.

        Short Note

       1. The question for consideration is as to what is the court – fee payable on the appeal preferred under clause 10 of the Letters Patent against the judgment of the learned Single judge in First appeal. According to the appellant, the appeal being against the judgment and not decree, Article 11 of Schedule II of the Court Fees Act is applicable and fixed fee of Rs. 7.50/ – is payable, but according to the respondent the judgment is nothing but decree and ad – valorem court – fee is payable under Article 1 of Schedule 1.

       Held: The controversy here is not whether it is judgment or not but as to what is the court – fee payable on the appeal. Under Article 11 of Schedule II of the Court Fees Act, fixed court – fee stamp of Rs. 7.50/ – is payable on the memorandum of appeal when it is not from a decree or order having the force of a decree. Under Article 1 of Schedule I, ad – valorem court – fee is payable on other appeals i.e. against the decree or order having the force of a decree. Earlier Letters Patent Appeals lay in second appeals only as first appeals used to be heard by the Division Bench. Ad – valorem court – fee used to be paid and recovered on such appeals. Now Letters Patent Appeal has been abolished in second appeals by amending Act No. 106 of 1976. But now first appeal of valuation up to Rs.20,000/ – is heard by the Single Bench under the amended rules and there can be no doubt that ad – valorem court – fee is payable on the Letters .Patent Appeal against judgment in first appeal because in fact the appeal is against the decree. If that is not so, then in the appeal the impugned judgment may be set aside and not the decree, creating anomalous position. So in effect the Letters Patent Appeal is an appeal against the decree and ad – valorem court – fee is payable. The judgment has finally determined the matters in controversy in the appeal and emodies in itself the formal expression of adjudication and in fact a decree has been drawn in terms of it. AIR 1969 Delhi 85 relied on. AIR 1925 PC 155, 8 BLR 433, AIR 1935 Rang 267, AIR 1952 Nag. 357, AIR 1974 SC 1719, AIR 1957 Cal. 727, 1961 All LJ 561 and AIR 1976 SC 1503 referred to and discussed. Case disposed of.