Hon'ble Om Prakash-VII,J.
(By Hon'ble Mr. Justice Om Prakash-VII) Order on Civil Misc. Application No. 220382 of 2014 and the objection dated 23.7.2014 against the Reports of Stamp Reporter dated 5.7.2014 & Taxing Officer dated 16.7.2014 This first appeal under Section 96 read with Section 104 Code of Civil Procedure has been filed by the plaintiff-appellant against the order / decree dated 9.5.2014 passed by the Additional District Judge, Deoband, Saharanpur in Original Suit No. 26 of 2011 whereby the court below has allowed the application under Section 144 Code of Civil Procedure moved by the defendant-respondent and directed the plaintiff-appellant to hand-over possession of the disputed property to the defendant-respondent.
When the present appeal was filed, the stamp reporter vide his report dated 5.7.2014 reported that according to valuation shown in the memorandum of appeal and decree, there is deficiency in court fee of Rs. 48,397.50. Against the said report of the stamp reporter, the plaintiff-appellant raised certain objections dated 14.7.2014. The court vide order dated 14.7.2014 directed the Taxing Officer to consider the claim of the plaintiff-appellant and pass appropriate order within a period of two days. In compliance of the said order, the Taxing Officer vide his report dated 16.7.2014 reported that there is no error in the report of the stamp reporter for charging ad valorem court fees on the basis of subject matter of the appeal and the suit and the sale deed executed by the court having monetary value of Rs. 6,40,000/-. In support of the report dated 16.7.2014, the Taxing Officer has taken note of the definition of the decree defined in Section 2 (2) of the Code of Civil Procedure and also provisions of the Court Fees Act regarding payment of court fees. A copy of the said report was supplied to the plaintiff-appellant, who had filed reply to the same. On the direction of the court, learned Standing Counsel has also filed written submission in the matter.
We have heard Shri M.A. Qadeer, learned Senior Advocate appearing for the plaintiff-appellant and the learned Standing Counsel for the State.
Shri M.A. Qadeer, learned Senior Advocate has submitted that the plaintiff-appellant has filed a suit for specific performance of contract in pursuance of an agreement to sale dated 25.2.2010. Despite service of notice, the defendant-respondent did not appear and suit was decreed ex-parte. When the defendant-respondent did not execute the sale-deed in compliance of the judgement and decree passed by the court below, the sale-deed was executed by the court on 19.3.2012. Later on the defendant-respondent filed an application under Order IX, Rule 13 Code of Civil Procedure, which was allowed and ex-parte judgement and decree was set-aside. Thereafter, the defendant-respondent filed application under Section 144 Code of Civil Procedure for restoring the possession. In compliance of the ex-parte judgement and decree, possession over the property in dispute has been given to the plaintiff-appellant. Vide impugned order, the court below illegally allowed the application under Section 144 Code of Civil Procedure and directed the plaintiff-appellant to hand-over possession of the property in dispute. Although the impugned order amounts to decree yet have no force of decree and the court fees in the appeal will only be chargeable as is charged for the appeal filed against the order passed under Order VII, Rule 11 Code of Civil Procedure or Order XXI, Rule 103 Code of Civil Procedure. It has also been submitted that no court fees can be charged/ levied against the impugned order under Schedule (I) of the Court Fees Act but the court fees in the present matter can be charged/ levied under the provisions of Schedule (2) Article 11 of the Court Fees Act and the impugned order would be termed only as decree by fiction.
Referring the provisions of the Code of Civil Procedure and the Court Fees Act, prayer has been made to reject the reports given by the stamp reporter and the Taxing Officer and the appeal be heard without charging ad valorem court fees.
On the other hand, placing reliance on the decisions in Baijnath Das vs. Balmakund, A.I.R. 1925 Allahabad 137 and Gul Muhammad vs. Sabz Ali Khan and others, A.I.R. 1930 Lahore 24, learned Standing Counsel has submitted that in the present matter the objection raised by the stamp reporter as well as the report of the Taxing Officer are in accordance with law. The court fees shall be chargeable according to the valuation shown in the appeal and ad valorem court fees will be payable for entertaining the present first appeal.
We have considered the submissions made by the learned counsel for the parties and have gone through the entire record.
In the present matter, the undisputed facts are that ex-parte order / decree passed in favour of the plaintiff-appellant has been set-aside, the sale-deed executed in favour of the plaintiff-appellant by the court below in compliance of the ex-parte decree has also become infructuous, the impugned order has been passed on the application under Section 144 Code of Civil Procedure to restore back the possession of the property in dispute. The present appeal has been filed by the plaintiff-appellant to retain the possession over the property in dispute. This court in Baijnath Das case (supra) has held as under:
"The question of law does not admit of any doubt. Orders under Ss. 47 and 144 are expressly declared to be decrees by S. 2 of the Code. In the absence of any provision to the contrary appeals from decrees require to be stamped ad valorem. The fee payable on appeals under S.47 would be ad valorem, but that it has been specially reduced by the Governor-in-Council by Notification No. 1231-VII of the 11th of October, 1923, under the powers conferred by S. 35 of the Court Fees Act as amended by the Devolution Act of 1920. No similar reduction has been made in the case of appeals under S. 144.
In order to claim exemption from an ad valorem fee the objector is compelled to argue that all orders under S. 144 are orders in execution falling also under S. 47. There was at one time some difference of opinion even in this Court as to whether orders under S. 144 were to be treated as orders in execution, and the objector is able to cite one decision, Gokul Prasad v. Ram Devi, AIR 1921 All 241 in his favour, but the opposite view is now generally accepted and has been adopted by this Court in two cases, Jiwa Ram v. Nand Ram, AIR 1922 All. 223, and Brij Lal v. Damodar Das, AIR 1922 All. 238 and by the Patna High Court in an elaborate Full Bench decision in Bolmakund Marwari vs. Basanta Kumari Dasi, AIR 1925 Pat. 1. The question has usually arisen with reference to limitation whether an application would be barred if it falls under Art. 181 of the Limitation Act but in time if it can be treated as an application for the execution of a decree under Art. 182. The principle of these decisions is equally applicable to the question of Court-fees.
An application under S. 144 is no doubt one which carries out the intention of the appellant Court's decree, but it does not directly execute that decree. What it does is to undo an execution wrongly granted by the Court below. In this case the High Court's decree was declaratory and could only have been executed in respect of costs. The appellant must therefore stamp his appeal ad valorem. As only one-third of the house is really in dispute and not the entire house he asks leave to amend his valuation so as to correspond with the matter in dispute. He is permitted to do this. The Court-fee on the amended valuation (the value of one-third of the house) must be made good withn two months of this date, failing which the appeal will be put up for orders of rejection."
We have also perused the record of First Appeal No. 85 of 2006 (Aziz Uddin vs. Smt. Laxmi Devi and others), pending before this court. The order under challenge in First Appeal No. 85 of 2006 is entirely different with the matter in hand.
Decree has been defined under Section 2(2) of the Code of Civil Procedure, which includes the determination of any question under Section 144 Code of Civil Procedure. The order under challenge has also been passed on the application under Section 144 Code of Civil Procedure, therefore, the appeal amounts the effect of decree. The present appeal has been filed by the plaintiff-appellant, who has obtained possession over the property in dispute in the execution of ex-parte judgement and decree, which has later on been set aside. Thus, the application under Section 144 Code of Civil Procedure was moved with the prayer to undo the execution in compliance of the ex-parte judgement and decree. The plaintiff-appellant, who has obtained possession over the property in dispute in the execution of ex-parte judgement and decree, which has been set-aside, cannot claim that the appeal filed by him to retain the possession be not charged with ad valorem court fees.
Since the impugned order clearly amounts to a decree and the plaintiff-appellant wants to retain possession over the property in dispute, therefore, in view of the law laid down in the above cited cases, we are of the view that the stamp reporter has rightly reported deficiency in court fees because court fees in the present matter is payable under Section 7 (v) read with Section 7 (x) and Column 1 of Schedule 1 of the Court Fees Act. There is no error in the report of the stamp reporter and the Taxing Officer. Thus, the objection raised by the plaintiff-appellant against the reports of the stamp reporter and the Taxing Officer are rejected. The plaintiff-appellant is directed to make good the deficiency in court fees within two weeks.
Dated : 26.09.2014 safi