Patna High Court
Damodar Prasad And Ors. vs Ram Charan Das And Ors. on 22 November, 1955
Equivalent citations: AIR1957PAT143, AIR 1957 PATNA 143
ORDER Raj Kishore Prasad, J.
1. Plaintiffs, who are the petitioners, instituted a money suit, for recovery of Rs. 4266,/-, being arrears of house rent During the pendency of the suit, on the 8th July 1953, the defendants made an application under Order 23, Rule 3 of the Code of Civil Procedure, for recording a com. promise, alleged to have been arrived at betweefi the parties. The Court below, after hearing. tii& parties, on the 30th November 1953, allowed the application of the defendants, and, directed the compromise to be recorded; and as required by Rule 8, Order 23 of the Code; passed a decree in accordance therewith, which was signed on the 8th December 1953. On the 8th March 1954, the plaintiffs applied under Order 47, Rule 1 of the Code for a review of the order dated the 30th November 1953, on certain grounds.
This application for review was registered aa Miscellaneous Case No.6 of 1954. The Court below by order of 26th June 1954, held that as this application has been filed beyond 90 'days of the judgment, sought to be reviewed, Sch. I, Article 4 (wrongly mentioned by the Court below as Article 2) of the Court-fees Act applied. The application for review was filed on the ninetieth day from the date of the decree. The Court below wrongly counted 90 days from the date Of the judgment, instead of from the date of the decree, as required by Article 4, Schedule I of the - Court-fees Act. The petitioners were, therefore, asked "to pay court-fee on the full value of the money suit''. Against this order, the petitioners have moved this Court in revision. After the above order, as the deficit court-fee, demanded by the Court below, was not paid, the application for review was dismissed for default on the 17th July 1954.
2. Mr. Mustafi, appearing for the petitioners, contended that Schedule II, Article 1 and not Schedule I, Article 4 of the Court-fees Act, applied to the application for review; and as such, the Court below has taken a mistaken view or the law.
3. The only question for determination, therefore, is whether the application, being one for review of judgment, should have been stamped ad valorem under "Article 4, Sch. I of the Court-fees Act. Article 4 of Schedule I provides that an application for review of judgment, if made, on or after the ninetieth day, from the date of the decree, should be stamped with the fee leviable on the plaint, or memorandum of appeal. Under Article 5. Schedule I, if such an application is made before the nintieth day from the date of the decree, then one-half of such fee is leviable.
4. Articles 4 and 5 of Sch. I provide for the court-fees payable in respect of applications for review of "judgment". A "Judgment" is defined in "Section. 2(9) of the Code of Civil Procedure. "Judgment" means the statement given by the Judge of the grounds of a decree or order. Both the Arts. refer to applications, which are made on, or within, or beyond, the ninetieth day from the date of the decree. Hence both the Articles seem to deal with judgment on which a decree is passed. The provisions of Order 47, Rule 1 of the Code of Civil Procedure, relating to review also refers to decrees as well as to orders. But the scope of these two articles is confined to applications for review directed against decrees. Where the decision attacked is not a decree, but only an order, these Articles will not apply, and the application will be liable to be stamped merely as an application under Sch. II. Article 1 with a fixed court-fee.
5. The next question, therefore, is whether the order of 30th November, 1953, passed under Order 23, Rule 3 of the Code, is a decree within the meaning of Article 4 of Scedule I of the Court-fees Act "Decree" has been defined In Section 2(2) of the Code, which runs thus:
" 'Decree' 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 be deemed to include the rejection of a plaint, and the determination of any question within Section 47 or Section 144, but shall not include,
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
6. Sub-clause (14) of Section 2 of the Code defines the word 'order' as meaning the formal expression of any decision of a civil Court which is not a decree. An examination of the language used in defining the word 'decree' in Section 2(2), Civil P. C., clearly shows that the order of the Court' below passed on the 30th November 1953, is not a decree. After saying that the word 'decree' means the formal expression of an adjudication which, so far aa the Court expressing it, conclusively determines the rights of parties with regard to the matters in dispute in the suit, the section goes on to say what the expression shall be deemed to include and what it shall not include.
It does not include two kinds of orders, namely, (1) an adjudication from which an appeal lies aa an appeal from an order, and. (2) an order of dismissal for default. See In re N. Kayambu Filial, AIR 1941 Mad 836: ILR 1941 Mad 954 (PB) (A). Section 2(2) (a) of the Code, therefore, makes it clear that a decree shall not include any adjudication from 'which an appeal lies as an appeal from an order. Under Order 43, Rule 1 (m) of the Code, an appeal is provided from an order under Order 23, Rule 3 of the Code, recording or refusing to record, a compromise. Section 96(3) of the Code provides that there shall be no appeal from a decree passed by the Court with the consent of the parties.
Therefore, under the' present Sub-section (3) of Section 98 of the Code, there is no appeal from a consent decree in any case, though the order itself recording the compromise is appealable. Construing Order 43, Rule Km), with Section 96(3) of the Code, it seems clear that the only appeal intended by the Legislature is an appeal against the "recording or re fusing to record" the alleged agreement, and not a further appeal again from the decree recording the compromise. The expression "a decree passed with the consent of parties" is not limited to a decree passed with the consent expressed at the moment the decree is passed, but includes decrees pased on consent proved, to have been out . of Court, though subsequently withdrawn, or repudiated before the Court.
The reason is that a decree can be passed in one of two ways: (a) by deciding the dispute on the merits, and, (b) on the consent of the parties. There is no third way of passing a decree so that a decree on a finding that parties have consented out of Court, if it does not fall under the first category must necessarily fall under the second category of consent decrees. The proper method, therefore, of questioning a consent decree is either by review, or by a regular suit, and not by way of appeal. But where a decree on compromise Is obtained by fraud, Court has inherent power to correct its own proceedings, when it has been misled, on an application for review of the consent decree, and in such a case, as the order could be summarily set aside by the Court, no court-fee. as on an application for review, need have been paid on the application. See Peary v. Sonoory, 19 CaJ WN 419: (AIR 1915 Cal 622) (B). When an order recording a compromise Under O, 23, R. 3, is set aside on an appeal under O. 43, R. l(m), the decree passed in accordance with the compromise under Order 23. Rule 3 also falls to the ground.
7. Therefore, the order of 30th November, I953. being not a decree, but an order, Article 4 of Sch. 1 of the Court-fees Act will not apply to the application for review of the order passed under Order 23, Rule 3 of the Code of Civil Procedure. To such a case, Schedule II, Article Kb) of the Court-fees Act will apply. Article 1(b) of Schedule II provides that an application or petition when presented to a civil Court, etc., and not otherwise provided for by this Act, will be stamped with the fixed fee. This court-fee having already been paid on the application for review, it must be held to be sufficiently stamped.
8. There is yet another aspect of the matter, which may also be considered. It may be argued that when Article 4 applies to applications for review of judgments ending in decrees, and when an order passed under Order 23, Rule 3, is followed by a decree, Article 4 should apply to such a case also. The question then is, if Article 4 applies, what is the position in law so far as such an application for review of an order passed under Order 23, Ru;le 3 is concerned? Article 4 provides that the fee payable on such an application is the fee leviable on the plaint, or memorandum of appeal.
The phrase "the fee leviable on the plaint or memorandum of appeal" means the proper fee to be levied if. the applicant for review were then putting in a plaint, or memorandum of appeal for the same relief. See Nahako P. v. Emperor, AIR 1927 Mad 360: ILR 50 Mad 488 (C). This case has been dissented from in Chandanmal v. Roopnarain, AIR 1954 Raj 84 (D). A Division Bench held that the words "leviable on the plaint or memorandum of appeal" mean properly leviable on the plaint, or memorandum of appeal in which the judgment sought to be reviewed is passed, and not on any imaginary plaint, or memorandum of appeal, which might have been presented at the time the review application was filed asking for the same relief as in the application for review.
In my opinion, the principle underlying Article 4 is that the applicant should pay court-fee on the value of the topic on which the judgment is passed. If a judgment is passed on the basis of a plaint in a suit, then the fee payable is on the plaint, or memorandum of appeal against the decree passed in the suit on the basis of the Judgment. Similarly, when the judgment is passed on the basis of an application, like an application under Order 23, Rule 3 then the fee is payable on the application, and not on the plaint, on the basis of which the suit was instituted, and in which the application under Order 23, Rule 3 was made. The applicant pays not for the relief sought for by any one else over which he has no control if he is not the plaintiff, but on the relief sought by himself, and he thus pays naturally and equitably on that relief, as if it were a plaint, or memorandum of appeal by himself, for that relief.
This appears to be the most reasonable interpretation which can be put upon this pluase in Article 4. An application made under Order 23, Rule 3 is equivalent to a plaint in a suit for the purpose of getting the compromise recorded. Therefore, the court-fee payable under Article 4 on the application for review of the order passed under Order 23, Rule 3 would be tne fee leviable on the application under Order 23, Rule 3, and not on the plaint in the suit itself. A judgment passed Under Order 23, Rule 3, ts an order within the meaning of Section 104(1) and Order 43, Rule 1 of the Code; and not a decree, as stated before.
9. As stated earlier, no appeal lies against the decree passed under Order 23, Rule 3 of the Code. The only appeal provided by the Code is Under O. 43, R 1(m) against the order passed under Order 93, Rule 3. Therefore, the fee payable on the application for review of the order passed under Order 23, Rule 3 may be also the fee leviable on this memorandum of appeal, which also is a fixed fee, and not ad valorem. In the present case, the order dated the 30th November 1953, was passed on the application, which was made originally under Order 23, Rule. 3 of the Code of Civil Procedure, for, recording the compromise. Against this order, the petitioners had a right of appeal under Order 43, Rule 1(m) of the Code, and they had also a right of review under Order 47, Rule 1 of the Code. Instead of preferring art appeal against this order, they applied for a review of the order. Therefore in any view of the matter, the application for review was sufficiently 'stamped and no further court-fee was payable on it.
10. In these circumstances, the order of the Court below demanding the deficit court-fee must be set aside, and all consequential orders passed on the basis of the order dated the 26th- June 1954, must also be vacated. The Court 'below will now consider the application for review on merit, ana decide, after hearing the parties, whether it should be allowed, or not. The application for review will now be restored to its file, and disposed of in accordance with law.
11. I may mention that in calculating the period of 90 days for the purpose of Article 4 or Article 6 of Schedule I of the Court-fees Act, the question whether the application for review is barred by limitation or not, is immaterial. An application presented on or after 90 days will come under Article 4-The question, therefore, whether the application is barred by limitation, in view of Article 173 of the Limitation Act, as contended by the opposite party,. Will now be decided by the Court below, if it is so raised.
12. In the result, the rule is made absolute, and tne order dated the 26th June 1954, as also the order dated the 17th July, 1954, are both sefi aside and Miscellaneous Case No. 6 of 1954 is restored to its file. There will be no order for costs.