TMI Blog1976 (5) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Tribunal by its decree dated May 19, 1965. Additional Civil Judge of Badaun was assigned as the Tribunal under the aforesaid Act. The appellants then filed an appeal before the Allahabad High Court with a nominal court fee of ₹ 5/- but the Stamp Reporter of the High Court was of the opinion that the appellants should have paid ad valorem court fees on the total claim preferred by the appellants before the Tribunal which had been disallowed. The matter was taken up by the Taxing Officer, who, in view of the substantial importance of the point raised, made a reference to the Taxing Judge for deciding the court fee payable on the memorandum of appeal in the instant case. The plea of the appellants was that as the decision of the Tribunal did not amount to a decree as contemplated by s. 2(2) of the Code of Civil Procedure 1908, ad valorem court fees were not payable and the appellants were entitled to pay court fees as prescribed in Sch. 11 Art. 11 of the Court Fees' Act. The stand taken by the revenue was that as the present appeal was against a decree, the case of the appellants squarely fell within the ambit of s. 4 of the Court Fees' Act and therefore ad va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for the respondents sought to repel the arguments of Mr. Goyal on two grounds. In the first place it was submitted that under the provisions of the Court Fees Act the order of the Taxing Judge was final and could not be re-opened by this Court even in special leave. Secondly, it was submitted that the Tribunal was nothing but a Civil Court and the provisions of the Act would show that the Tribunal was clothed with all the powers and incidents of a Civil Court. In these circumstances it was contended that any decree which was passed by the Tribunal must be presumed to be a decree of the Court and was made appealable as such under s. 40 of the Act. Therefore, it was said, Sch. II Art. 11 had absolutely no application and the view taken by the Taxing Judge was legally correct. In order to understand the contentions raised by the counsel for the parties it may be necessary for us to trace the history of the Act and the circumstances in which it was passed. To begin with, following the partition of the country there was an unprecedented rush of refugees from Pakistan to India and our country immediately after becoming independent had to face the colossal problem of rehabilitating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be capable of attachment. Clause 13 deals with claims by displaced creditors against persons who are not displaced debtors. That is not comparatively so important because it only gives relief in respect of court fees. We felt that under the depressed economic condition of the displaced creditors, it is necessary that we must give them some relief against the huge amount of money which they have to pay as court fees etc. I submit that these are all very necessary and humane considerations which take into account the actual paying capacity of the debtor. We have maintained the existing procedure in the Courts but we have simplified it because a prolonged procedure and the complexities of the civil courts mean a lot of money. We have provided only one appeal in clause 40. A perusal of the above observations will give a clear insight into the various objects of the Act and the main purposes which the legislation sought to achieve. It will be noticed that the Minister laid particular stress on the paying capacity of the debtors which he called a humane consideration and also described the necessity of giving relief to the displaced persons against the huge amount of money whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These observations manifestly show that the Courts have to interpret the provisions of a fiscal statute strictly so as to give benefit of doubt to the litigant. The principles deducible from the decisions referred to above are well established and admit of no doubt. We, therefore, propose to decide the question raised before us in the light of the principles enunciated above, but before doing that it may be necessary to give a brief survey of the scheme and structure of the Act in order to find out the real nature, scope and ambit of the statute. To begin with, it may be necessary to extract the relevant portion of the statement of objets and reasons of the statute: The Bill is designed mainly to give relief to displaced debtors in respect of liabilities incurred by them prior to their displacement from West Pakistan though remission of court fees has also been allowed to displaced creditors. A certain amount of relief was afforded to them by Acts XLVII of 1948 and XXV of 1949, but this was found to be inadequate. A thorough examination of the various problems involved had to be made with a view to affording displaced persons adequate and, at the same time, reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Section 10 deals with claims by the creditors against displaced debtors and s. 11 regulates the procedure of a petition filed by the creditor. Sub-section (2) of s. 11 further authorises the Tribunal to determine the claim and pass a decree in relation thereto. Section 12 provides for objection by creditor to schedule of assets and s. 13 refers to claims by displaced creditors against persons who are not displaced debtors. Section 14 prescribes the procedure for displaced creditor's petition filed under s. 13 of the Act and authorises the Tribunal to pass a decree as it thinks fit. Sub-section (3) of s. 14 authorities the Tribunal to pass a decree if no cause is shown or if no dispute exists. A perusal of sub-ss. (2) (3) of s. 14 clearly shows that the statute contemplates a decree which may be one of rejection of the claim put forward by the displaced creditor or one which amounts to allowing the claim. Thus, in other words, whether claim is disallowed or allowed, the order passed by the Tribunal would be a decree in both cases. We have purposely mentioned this fact because some of the High Courts have taken the view that where the Tribunal rejects the claim of a displ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances. It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose. It is by and large a measure for the rehabilitation of displaced debtors. x x x There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal he is satisfied with the reliefs which an ordinary civil court can give him in the normal course. It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal's jurisdiction comes into operation. x x x It is also desirable to notice that so far as a claim of a displaced creditor against a non-displaced debtor is concerned the main facilities that seem to be available are (1) the claim can be pursued within one year after the commencement of the Act (presumably even though it may have been time barred), (2) a decree can be obtained on a mere application, i.e. without having to incur the necessary expenses by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the Court Fees Act nor the Displaced Persons (Debts Adjustment) Act has defined the term decree . Nevertheless as far back as 1859, by Act No. VIII of 1859 passed by the Governor-General in Council the concept of a decree was clearly indicated, although no definition of a decree was given in that Act. By ss. 183 to 190 the manner in which the judgments were to be given and the decrees were to be prepared as also the contents of the same were clearly mentioned. Section 189 which expressly dealt with decrees ran thus: The decree shall bear date, the day on which the judgment was passed. It shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, as stated in the Register of the suit, and shall specify clearly the relief granted or other determination of the suit. It shall also state the amount of costs incurred in the suit and by what parties and in what proportions they are to be paid, and shall be signed by the Judge, and sealed with seal the Court. Thus when the Court Fees Act was passed in the year 1870 and used the term decree it must be intended to have used the word decree so as to bear the same conno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lal v. Mst. Chhotaka Bibi, where this Court observed as follows: In our view in considering the question as to the maintainability of an appeal when the court-fee paid was insufficient to start with but the deficiency is made good later on, the provisions of the Court Fees Act and the Code of Civil Procedure have to read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other. Apart from the decisions bearing on the point, there can in our opinion, be no doubt that Section 4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it. There are a number of other decisions of the High Courts which have also taken the view that the word decree appearing in Sch. II Art. 11 has to be read in the same sense as used in the Code of Civil Procedure. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch could be termed a suit. Section 26 specified the particulars that are to be given in the plaint. Section 27 laid down the manner in which the plaint was to be subscribed and verified. Thus the scheme of the Code of Civil Procedure of 1859 as disclosed by the aforementioned provisions, also points to the conclusion that a decree marks the culmination of a proceeding which is described as a suit, and which, according to the said Code, is initiated by means of a plaint. Proceedings for letters of administration under the Indian Succession Act (Act XXXIX of 1925) are not commenced by the institution of a plaint. On the other hand, as section 278 of the said Act shows, they are commenced by an application or a petition. For the above reasons we are of opinion that the decision of a Court in proceedings for letters of administration cannot be described as a decree. If excitability was to be the invariable quality of all decrees, one would expect that the Legislature would incorporate this feature in the provisions which define the nature, scope and contents of a decree. Further, if the Legislature wanted that Schedule II Article 11 should apply only to executable order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a decree; and (iii)that the adjudication must be formal and final and must be given by a civil or revenue court. In the proceedings under the Act we have already pointed out that as the Legislature has created a special tribunal to inquire into the claims displaced debtors or creditors, the Tribunal cannot be called a Court in any sense of the term because the Legislature has made a clear distinction between a Tribunal and a Court. Secondly, as the proceedings before the Tribunal start with an application and not with a plaint the other important ingredient of a decree is wholly wanting. Thirdly, the Legislature has itself made a clear- cut distinction between a suit and a proceeding and has described the claim before the Tribunal as a proceeding rather than as a suit. In these circumstances, therefore, none of the requirements of a degree are to be found in the decision given by the Tribunal even though the Legislature may have described the decision as a decree A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of The Court Fees Act. The term decree appears to have been used by the Legislature to convey a sens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Fishing Company Lord Buckmaster pointed out as follows: It has long been a well-establilshed principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial inter pretation, the subsequent statute which incorporates the same word or the samerphrase in a similar context must be construed so that the word or phrase is interpreted according the meaning that has previously been ascribed to it. Craies further points out that the rule as to world judicially interpreted applies also to words with well-known legal meanings, even though they have not been the subject of judicial interpretation. Thus applying these principles in the instant case it would appear that when the Court Fees Act uses the word decree which had a well-known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if there has been no express judicial interpretation on this point. There are a number of decisions which have taken the view that Sch. II Art. 11 governs appeals against decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative Credit Bank Ltd. and Others, while construing an almost identical question, the Calcutta High Court observed as follows: It is to afford relief to displaced persons and that purpose may well be frustrated, if, in cases of preliminary dismissals of the applications the appeals are to be filed with ad valorem court-fee on the disputed amount, even assuming that it is capable of ascertainment at the particular stage. Beaning that in mind and having regard to the scheme and structure of the Act and the nature of the impugned decree, namely, of dismissal on the preliminary finding of the failure of the appellants to prove the necessary status, and, the propriety of that finding being the sole question for consideration in the appeal, so far as the appellant are concerned, we do not think that it would be improper to hold that the subject matter in dispute in the appeal is that question of status which plainly is incapable of money value. The appeal thus would come under Schedule II, Art. 17, of the Court-fees Act, provided, of course, the memorandum of appeal is in a 'suit' as contemplated in the opening paragraph of the Article. x x x Even if the subject-ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause it did not a determine the claim which, in the circumstances in which that word has been used in s. 11(2) must relate to the existence or the amount of the debt due to the creditor. The creditor, therefore, if he has a right of appeal, has to pay court-fee under Sch. II. Art. 11 which mentions appeals which are not preferred from a decree or an order D. having the force of a decree. Here the order, though it finally determined the application under s. 10, was not a decree; nor did it have the force of a decree for it is not strictly in accordance with the terms of s. 11(2). x x x x x x We feel that this Act is an ameliorative measure for the benefit of displaced persons. It should be strictly interpreted, and only those orders should be considered decrees, which come strictly within the terms of s. 9, 11(2) and 14(2). Where however the order does not come strictly within the terms of those provisions, it should not be tracted as a decree, but only as an order determining the application. Here also a distinction was sought to be drawn between a dismissal of the application on the ground that the claimant was not a displaced person and a decision which decreed the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all. We find ourselves in complete agreement with the observation made by Falshaw, J., in the decision referred to above. Our attention was, however, drawn by the learned counsal for the respondents to three decisions of the High Court taking contrary view, namely, Kishandas v. Parasram; Nabh Raj Notan Das v. Sidhu Ram Mool Chand and Sita Ram v. Mool Chand. These decisions have on doubt held that decision of the Tribunal under the Act amounts to a decree and, therefore, does not fall within the ambit of Sch. II Art. 11 and ad valorem court-fee is payable under the Court Fees Act. We are, however, unable to agree with the view taken by these Courts. In the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding. These decisions have also not considered the various aspects which we have discussed above relating to the essential conditions of a decree and finally these decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents but on a closer scrutiny of the entire decision it seems to us that this Court was not at all called upon to decide the question of the effect of s. 5 of the Court Fees Act as overriding the provision of Art. 136 of the Constitution. The observations relied upon by the respondents are prefaced by the observations of Gajendragadkar, J., who spoke for the Court, where he has clearly mentioned that the Court was not called upon to consider this point, thus: We are, however, not called upon to consider the point as to whether s. 7 (v) would apply to the present suit or whether the present suit would fall under s. 7(iv) (b). Further more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court-fees and confined his arguments only to the question as to whether the court-fees should be levied under s. 7(iv) (b) of the Court Fees Act. In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents. For these reasons the contention raised by the respondents on this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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