Bajrangdas vs Baldevraj Bhasin - 1980 Supreme(MP) 713

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : H.B. Mangal
For the Respondent: M.L. Gupta

Headnote:Civil Procedure Code, 1908 - O. 21, R. 97 - miscellenous appeal filed under order 21, rule 97 CPC from an order having the status of a decree which fall under the definition of section 2 (2) CPC - Article 11 of Schedule II of Court - fees Act, 1870 attracted.
       Short Note
       1. The respondent raised the preliminary objection to the maintainability of the miscellenous appeal on the contention that the order made on the objection under Order 21, rule 97. Code of Civil Procedure had a force of decree and as such the appeal against the same would require payment of ad valorem Court - fees on the valuation of the subject - matter, in the same manner as is required in regular first appeal preferred under section 96 of CPC.
       2. The order impugned in this appeal is undisputedly one made on an objection raised by the respondents in accordance with provision of Order 21, rule 97 CPC. It was also not disputed that the said order has been made after adjudication of various questions as contemplated by rule 101 of Order 21 CPC., and as such, was fully governed by the provisions of Order 21 rule 103. which provides that such orders should be treated as decrees and shall have the same force as that of a decree and would be subject to the Same condition as to an appeal or otherwise as if it were a decree. It is also apparent that in the context of the scheme contemplated by the amendment incorporated in the Code of Civil Procedure, scope of adjudication included even the question relating to the right, title and interest of the parties, arising between the parties on an application under Order 21, rule 97 and were to determine during the enquiry under those provisions and not be a separate suit.
       Held: In the opinion of this Court this objection must fail and cannot be sustained. There is a clear distinction in between a decree and a order which is to be treated as a decree or has been given the same status as that of a decree. If certain order, having force of decree having been made appealable as a decree, are specifically included in the definition of the term ‘decree’, then of course undoubtedly the provisions of Article 11, schedule n of the Court - fees Act will notice attracted. The term 'decree' as used in the said Article has been used by the legislature as referring to such decrees which are covered by the definition given in section 2 (2) of the Code. The language used in Art. 11 of Schedule II, "When the appeal is not from a decree or an order having the force of a decree refers to such orders, which have been included in the definition in section 2 (2), for instance, order rejecting a plaint or an order in proceedings under section 144 of the Code. If all such orders having force of a decree were to be treated as strictly covered by the definition of the term 'decree' as contained in section 2 (2), there would have been no need to refer to some of such. orders by specifically including them by a deeming provision, while defining the term 'decree' as has been done specifically in respect of the type of orders referred to above.
       3. Similary, even if the order his not been made appealable under Order 43, rule 1, which mentions various orders as appealable under section 104, there if no material difference. The language of section 104 of the Code does not require it as a condition precedent that such orders alone will be appealable under the said section, which have been enlisted under Order 43, rule 1. On the contrary, it provides that an appeal shall lie from any order made under rules from which an appeal is expressly allowed by the rules. As is stated in the opening part of sub - section (1) of section 104, it has been clearly stated that 'and save as otherwise expressly provided in the body of this Code' would also be an exception to the prohibition as contained in section 104 saying that appeal shall lie from no other order.
       4. Learned counsel for the objector respondents, further contended that the language used in Art. 11 of the schedule II of the Court Fees Act should not be construed to hold that the term 'decree' used therein is confined only to those orders as are strictly covered under section 2 (2) of the Code. The legal position in this respect stands settled by the decision of the Supreme Court reported in AIR 1976 SC 1503 (Diwan Bros, v. Central Bank, Bombay) where it has been specifically laid down by their Lordships of the Supreme Court that the term 'decree' used In Art. 11 of schedule II of the Court Fees Act is referable to a decree as defined in section 2 (2) of the Civil Procedure Code and therefore, even if certain other decisions or orders, though having been given force of a decree and made enforceable or appealable as a decree, will continue to be governed by the Art. 11 of Schedule II. Their Lordships of the Supreme Court were of the opinion that the term 'decree' as Used in the Court Fees Act, is a term of art, it must be deemed to have been used in the same sense as understood by the Code of Civil Procedure. According to the Supreme Court as observed in para 9 and 10 the legislature in enacting the Court Fees Act used the term "decree" in the same sense as it was used in section 2 (2) of the Code of Civil Procedure. Three essential conditions were laid down for holding an adjudication to be a decree as contemplated by section 2(2). These conditions were that firstly, the adjudication must be given in a suit, secondly, that the suit must start with a plaint and culminate in a decree; and further that the adjudication must be formal and final and must be given by a civil or revenue Court. From the language of rule 103, it is apparent that it contemplates an order made on an application under section 98 or section 100. Thus, it cannot be said that the order made under rule 103 was the one given in a suit which started with a plaint and culminated in a decree. So long as the order made under rule 103 is not included in the definition of the term 'decree', as has been done in respect of certain other orders, i.e., rejecting a plaint under Order 7 etc., it would not be possible to hold that the benefit of Art. 11 cannot be availed of by the party aggrieved from such orders, though made enforceable as a decree. The legislature made a self - contained provision, while defining the term 'decree' and while doing so specifically included certain orders, which were intended to be construed as a decree and similarly expressly excluded certain adjudications which were not intended to' be treated as a decree, though being formal and final in respect of a suit, e.g. an order of dismissal of the suit for default etc. Objection dismissed. AIR 1976 SC 1503 & 1977 JLJ 827, relied on.