5. Applications. - The general rule is that all applications or petitions made to a Civil Court unless otherwise provided require a court-fee stamp under Article 1, Schedule II of the Court Fees Act. While this rule is of the simplest Courts appear to find difficulty in deciding when applications are necessary, some failing to obtain applications when necessary and some demanding applications when such cannot legally be demanded. For certain purposes the Civil Procedure Code requires an application to the Court precedent to action being taken. For other purpose the Judge may require an application to be filed. In both these cases it is the duty of the Judge to see that the application is properly stamped under the Court Fees Act. In other matters an application is neither necessary nor compellable. In such a case a party may or may not file an application as he chooses. If he chooses to do so the application must be stamped. If he does not choose he cannot be compelled to file an application. The principle is that the Court may require an application in all cases (a) where it is not bound to take the next steps or (b) where it has not acted suo motu in ordering the next step. The Court must require an application in cases where the Code requires an application. This principle may be better explained by reference to a few examples.
(These examples are not to be read as discouraging the issue of orders suo motu).(a)A Court is not bound to issue a first summons to a defendant (Order V, Rule 1). Therefore, it may require an application stamped under Article I, Schedule II, Court-Fees Act, before so issuing. Normally, however, the Court orders issue suo motu. Once the order has been passed an application cannot be demanded.(b)If the first summons to a defendant is not served Order IX, Rule 6, provides that the Court shall in certain circumstances issue a fresh summons (except in cases covered by Order IX, Rule 5). For this purpose, therefore, the Court has no power to demand an application. But if the plaintiff elects to file an application the Court must see that it is stamped.(c)The Code lays down that when an application for the purpose is made the Court may issue a first summons to a witness or a person called to produce a document (Order XVI, Rule 1). In this case therefore, the Court should compel an application and should not proceed suo motu. Such an application would require to be stamped under Article 1, Schedule II, Court-fees Act, but for the operation of Section 19 (xiv), ibid, by which this type of application is exempted from fee.(d)The Code provides in Order XVI, rule 10, that the Court may issue a subsequent summons on failure of service under Order XVI, Rule 1. Here, therefore, the Court may demand a stamped application or may proceed suo motu. Such subsequent applications are not exempt under Section 19 (xiv), Court-fees Act, and must be stamped.(e)When a Court has ordered execution of a decree under Order XXI, Rule 17 (4), it is provided under Rule 24 of Order XXI that the Court shall issue its process in execution. It is, therefore, incorrect to compel the decree-holder to file a separate stamped application for issue of process.(f)If process issued under Order XXI, Rule 24, is unserved, the Court is bound to record the result of the enquiry under Order XXI, Rule 25 (2), but there is no provision in the Order specifically requiring it to take further steps. The Court may, therefore, act suo motu or on an oral request in ordering the issue of fresh process or may require a stamped application to this effect.(g)An application for execution of a decree usually contains a prayer to realize money and pay it to the decree-holder, vide Form No. 6, Appendix E, Civil Procedure Code. The Court is bound to deal with the prayer to pay out by an order and having passed an order to pay out, cannot subsequently insist on an application for payment. The Court should, however, insist on a memorandum which should state the number of the case, the names of the parties, the amount and nature of the deposit, the amount ordered to be paid and the date of such order. The memorandum should not contain any prayer; if it does, it amounts to an application and must be stamped as such.Attention to the principles laid down and the above examples should obviate difficulty in the matter.
