PETITIONER: <NAME>. Vs. RESPONDENT: <ORG>, BOMBAY AND OTHERS DATE OF JUDGMENT07/05/1976 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA BHAGWATI, P.N. GUPTA, A.C. CITATION: 1976 AIR 1503 1976 SCR 664 1976 SCC (3) 800 ACT: <ORG> Fees Act , Schedule II, Art. 11.  Displaced Persons (Debts Adjustment) Act , 1951- Tribnal's decision-If a decree within the meaning of s. 2(2) C.P.C. <ORG> Fees Act. Schedule II, Art. 11- Schedule 1 Art. 1- Applicability of. HEADNOTE: Schedule II, Article 11 of the <ORG> Fees prescribes a sum of Rs. 2/- as court fees in the case of a memorandum of appeal presented to <ORG> when the appeal is not from a decree or order having the force of a decree. The <ORG> appointed under the Displaced Persons (Debts Adjustment) Act 1951 dismissed the petition filed by the appellant claiming certain sums from the respondents. In appeal to <ORG> from the decision of the <ORG> did not amount to a decree within the meaning of s. 2(2) of the Code of Civil Procedure. The taxing Judge, to whom question of payment of court fees was referred, came to the conclusion that the appellant should pay ad valorem court fees under Schedule I, Article 1 of the <ORG> Fees Act . On the question whether the decision of the <ORG> was a decree within the meaning of s. 2(2) C.P.C. Allowing the appeal to this <ORG>, ^ HELD: The memorandum of appeal in the instant case falls within the ambit of Schedule II, Article 11 of the <ORG> Fees Act and the view of the taxing Judge that ad valorem court fees were payable under Schedule I Article 1 was legally erroneous. [683C] (1) (a) In the definition of "decree" contained in s. 2(2) of the Code of Civil Procedure, three essential conditions are necessary: (i) that the adjudication must be given in suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii) that the adjudication must be formal and final and must be given by a civil or revenue court. [677E-F] Under the 1951 Act, special <ORG> was created to enquire into the claims of displaced debtors or creditors. It cannot be called a court in any sense of the term because the legislature had made a clear distinction between a <ORG> and a courts. Secondly, since proceedings before a <ORG> statute with an application and not with a plaint the other important ingredient of a decree is wholly wanting. Thirdly the claim before the <ORG> had been described as a preceding rather than a suit. Therefore, none of the requirements of a decree is to be found in the decision given by the <ORG> even though the legislature may have described the decision given by the <ORG> even though the legislature may have described the decision as a decree. A mere description of the decision of the <ORG> as a decree does not make it a decree within the meaning of the <ORG> Fees Act . [677G-H] (b) The term "decree" used in Schedule II, Article 11 , is referable to a decree as defined in s. 2(2) of the Code of Civil Procedure. As the decision of the <ORG> in the instant case does not fulfil the requirements of a decree, 665 it is not a decree within the meaning of Schedule II, Article 11 of the <ORG> Fees Act . [678D] <CITATION> . Chhotaka Bibi  1 S.C.C. 769; <CITATION> , AIR  All. 50; <NAME> v. <ORG>. AIR  Hyd. 81; <CITATION> , AIR  Pat. 489; <CITATION> AIR  All. 153; <NAME> v.<ORG>. AIR  Mys,. 150; <NAME> v. <NAME> AIR  Oudh 254; <NAME> vg. <NAME>, 8 C.W.N. 321; Taxing Officer, High <ORG> Appellate side v. <NAME> ILR  Bom. 211; <NAME> v. <ORG>A.C. 402 411; <CITATION> , AIR  Raj. 146; <ORG> v. <ORG> ILR  8 Raj. 216 and <CITATION> . AIR  Pb. 153, referred to. <CITATION> - <ORG> and others, AIR  Cal. 675; <CITATION> AIR  Raj. 146; <NAME> v. <ORG>Raj. 81 and <CITATION> , AIR  All. 672,. not approved. (c) Where a legislature uses an expression bearing a well-known legal connotation it must be presumed to have used the said expression in the sense in which it has been so understood. Therefore, when the <ORG> Fees Act uses the word "decree" which had a well-known legal significance, the legislature must be presumed to have use this term in the sense in which it is which it is understood in the Civil Procedure Code.[678F; 679B] <NAME> v. <ORG>A.C. 402, 411. referred to. There is no force in the contention of the respondent that under s. 5 of the <ORG> Fees Act the decision of the taxing Judge was final and could not be re-opened in any court and as such no appeal under Article 136 was maintainable. Even though the order of the taxing Judge may be final under s. 5 , the power of this <ORG> under Article 136 will over-ride any stamp of finality given by a statute. The finality under s. 5 cannot derogate from the power conferred by the Constitution on the Supreme <ORG>. [683E] <CITATION>  S.C.R. 1021, held inapplicable. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1370 of 1968.

Appeal by Special Leave from the Judgment and order dated the 6th March, 1967 of <ORG> at Allahabad in First Appeal No. Nil of 1965.

<NAME> and <NAME>, for the Appellants. <NAME>, <NAME> and <NAME>, for Respondent No. 1.

<NAME> and <NAME>, for the State of U.P. The Judgment of the <ORG> was delivered by <NAME>, J.-This is an appeal by special leave against the judgment of the Single Judge of <ORG> deciding a court fee matter in connection with the memorandum of appeal filed by the appellants before <ORG> against a decree passed by the <ORG> appointed under the Displaced Persons (Debts Adjustment) Act , 1951- hereinafter referred to as 'the Act'. The appellants had filed an application under s. 13 of the Act before the <ORG> alleging that it was a partnership firm and claimed that an amount of Rs. 3,50,000/- by way of refund of security deposits and a sum of Rs. 55,000/- as commission was due from the respondents. The application was tried by the <ORG> and the claim preferred by the appellants was ultimately dismissed by the <ORG> by its decree dated May 19, 1965. Additional Civil Judge of Badaun was assigned as the <ORG> under the aforesaid Act. The appellants then filed an appeal before <ORG> with a nominal court fee of Rs. 5/- but the Stamp Reporter of <ORG> was of the opinion that the appellants should have paid ad valorem court fees on the total claim preferred by the appellants before the <ORG> 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 <ORG> 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 <ORG> 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 <ORG> Fees' Act and therefore ad valorem court fees were payable under Sch. I Art. 1 of the <ORG> Fees' Act. The matter was taken up by the Taxing Judge who went into the question of law raised before him and after considering some authorities, particularly those of <ORG>, agreed with the Stamp Reporter and came to the conclusion that the appellants should pay ad valorem court fees under Sch. I Art. 1 of the <ORG> Fees' Act. The Taxing Judge accordingly by his order dated October 11, 1965 directed the appellants to make up the deficiency in the payment of the court fees. It was against this order that the appellants filed a petition for special leave to this <ORG> which having been granted the appeal has now been placed before us for hearing.

This appeal involves a short but substantial question of law as to the interpretation, scope and ambit of Sch. II Art. 11 of the Court Fees' Act as applicable to appeals preferred against the orders or decrees passed by the <ORG> constituted under the Act. The point is not free from difficulty and there appears to be a serious divergence of judicial opinion on the question as to whether in appeals like the present, Sch. I Art. 1 or Sch. II Art. 11 of the Court Fees' Act would apply.

Mr. <NAME> learned counsel appearing for the appellants raised two points before us. In the first place he contended that as the proceedings before the <ORG> were not proceeding in <ORG> nor was the <ORG> a Court, therefore, the decision of the <ORG> even though loosely called as a decree is not a decree as contemplated by s. 2(2) of the Code of Civil Procedure and therefore the case of the appellants clearly falls within the ambit of Sch. II Art. II of the Court Fees Act. It was next contended that as the <ORG> had disallowed the claim of the appellants by the order impugned before <ORG> the order did not amount to any decree and, therefore, the question of payment of ad valorem court fees did not arise. In this connection it was also submitted that the Act being a beneficial statute was designed to provide a cheap and expeditious remedy to displaced persons in certain circumstances and therefore the <ORG> never intended that displaced persons who had lost all that they possessed in Pakistan should be made to pay ad valorem court fees without possessing the capacity to do so.

Mr. <NAME> appearing for the respondents sought to repel the arguments of Mr. <NAME> on two grounds. In the first place it was submitted that under the provisions of the <ORG> Fees Act the order of the Taxing Judge was final and could not be re-opened by this <ORG> even in special leave. Secondly, it was submitted that the <ORG> was nothing but a Civil <ORG> and the provisions of the Act would show that the <ORG> was clothed with all the powers and incidents of a Civil <ORG>. In these circumstances it was contended that any decree which was passed by the <ORG> must be presumed to be a decree of the <ORG> 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 the refugees or the displaced persons. Most of these persons had left huge assets behind in Pakistan and had come to this country without a penny. Others were creditors and were entitled to get their debts liquidated from the assets in this country or from the properties possessed by the Banks in this country. Soon after independence there were stray and piecemeal legislations providing for some facilities for displaced debtors and creditors but there was no uniform law to cater to their growing needs in view of the situation faced by them following the partition of our country. In these circumstances, therefore, the Government decided to bring out a uniform legislation so as to be a complete code in itself providing for a cheap and expeditious remedy for displaced debtors and creditors. The matter was first entrusted to a <ORG> and then to <NAME>, a retired Judge of <ORG>, who after taking evidence of a large number of displaced persons and examining the nature of the claims, submitted a report which formed the basis of the Displaced Persons (Debts Adjustment Act . Introducing the Bill which preceded the Act, Mr. <NAME>, the then Minister of State for Rehabilitation, made a long speech in <ORG> dwelling on the various aspects of the Bill. The Minister particularly highighted the fact that the condition of the displaced persons was pitable as they had left huge assets behind in Pakistan. In this connection the Minister observed thus:

"The condition of the displaced persons therefore today is that while their assets have been left behind in Pakistan and they have brought the titles of their property, at least in some cases.

In the provisions contained in this Bill, we have tried to strike a balance between the reduced capacity of the debtor to meet his obligations and at the same time we have taken sufficient care to see that a debtor who is in a position to pay may not deny payment to his creditor.

In this Bill, we have introduced what might be called a somewhat revolutionary principle, namely, that no debtor will be called upon to pay more than his paying capacity. I shall later on define what the words 'paying capacity' mean, but here it may be enough to mention that paying capacity of a debtor has been defined in a rather liberal manner after allowing fairly large assets which will not 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 <ORG> 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 which they may have to pay as court fees. Thus it would appear that the intention of <ORG> was to bring out a legislation which would provide for a cheep and expeditious remedy to the displaced persons and entrust the work to a <ORG> which may be able to decide the claims quickly instead of leaving the displaced debtors or creditors to follow the dilatory and cumbersome process of the civil courts. In order to shorten the litigation the Minister expressly stated that only one appeal had been provided in s. 40 of the Act, to <ORG>. These matters will have a very important bearing on the interpretation of the provisions of the <ORG> Fees Act as applicable to the decrees passed by a <ORG> under the Act. Even apart from these considerations, it is well settled that in case of a fiscal statute the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of court fees on the litigant. Thus where an adjudication given by a <ORG> could fall within two provisions of the <ORG> Fees Act , one of which was onerous for the litigant and the other more liberal, the <ORG> would apply that provision which was beneficial to the litigant. <CITATION> , while interpreting the provisions of a fiscal statute, viz., the Travancore-Cochin General Sales Tax Act, this <ORG> observed as follows:

"It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Reve nue satisfs the <ORG> that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter."

Similarly in <CITATION> , while interpreting some of the provisions of the Bombay Court Fees Act, <NAME>, J., speaking for the Court observed as follow:

" The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject-litigant."

These observations manifestly show that the <ORG> 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, reasonable relief in the matter of their indebtedness, consistently with the needs of their rehabilitation. A decree under the law will thus consist of two parts, the first part being equivalent to and recoverable from the 'paying capacity' of the debtor, and the second part being equivalent to the balance of the total amount decreed and recoverable from the compensation, if and when received by the debtor. The first part of the decree will, as a rule, be recoverable in instalments.

In respect of the second part of the decree, it has been accepted that the amount payable should be scaled down in the proportion in which the displaced debtor is able to obtain recompense in respect of his immovable property left behind in West Pakistan. Where no recompense is received, there will be no recovery of the second part of the decree."

Section 4 of the Act provides for constitution of <ORG> to exercise jurisdiction under the Act and empowers <ORG> to designate any civil court or class of civil courts as the <ORG> or <ORG> and may also define the areas in which such <ORG> shall exercise jurisdiction. It may be pertinent to note here that the statute deliberately does not entrust the functions of the Act to the civil court per se but to a <ORG> to be selected from amongst civil courts. Section 5 of the Act provides for an application to be given by a displaced debtor for adjustment of his debts and gives the requirements of that application. Section 6 authorises the <ORG> to reject the application under s. 5 , if it does not fulfil the requirements of s. 5 and further gives it the power to grant time to comply with the requirements. Sections 7 and 8 of the Act provide for issue of notices to the respondents and give right to the respondents to file their objections. Section 9 provides for an inquiry into the application made under s. 5 . The statute designedly uses the word "proceeding" in s. 9 rather than a suit which clearly shows that the <ORG> was aware of the distinction between a "proceeding" and a "suit". Sub-section (2) of s. 9 authorises the <ORG> to decide the dispute and pass such decree in relation thereto as it thinks fit. It is, therefore, clear that the decree which the <ORG> passes is not a decree of <ORG> but a decree passed by a <ORG> in a proceeding under s. 5 and section 9 of the 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 <ORG> 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 <ORG> to pass a decree as it thinks fit. Sub-section (3) of s. 14 authorities the <ORG> 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 <ORG> would be a decree in both cases. We have purposely mentioned this fact because some of <ORG> have taken the view that where the <ORG> rejects the claim of a displaced creditor or debtor either on the ground that the petitioner is not a displaced debtor or creditor but not on merits, such an adjudication does not amount to a decree. This distinction sought to be made by some of the courts does not appear to be consistent with the scheme and language of the statute. Section 15 of the Act deals with the consequences of application by displaced debtor. The next relevant provision is s. 18 which regulates the procedure for claims against insurance companies, and sub-s. (2) of this section provides for a decree to be passed by a <ORG>. Section 23 provides for a simplified procedure in certain cases where the claim is below Rs. 5,000/- in which case the <ORG> is empowered to record only a memorandum of the substance of the deposition of the witnesses so as to given a short and summary decision. Section 27 refers to the contents of the decree and s. 28 provides for the forum and the <ORG> in which the decree passed by the <ORG> is to be executed. Section 32 of the Act provides the procedure for scaling down of debts by a displaced debtor. Section 36 provides for extension of period of limitation. Section 40 is the provision for appeals against any decree or final order of the <ORG> or against any order passed in the course of execution. These are the relevant provisions of the Act in so far as the facts of the present case are concerned. A close examination and a detailed analysis of the various provisions of the Act would clearly reveal that the Act is a beneficial statute meant for advancing the cause of the displaced debtors and creditors by conferring substantial benefits on them if they are able to prove their claims. In these circumstances it is clear to us that the <ORG> could never have intended that the claimants should have to pay heavy court fees either in getting, their claims adjudicated by the <ORG> or even in filing appeals against the decrees of the <ORG>. That the displaced persons had been given such concessions and facilities has been held by this <ORG> in <CITATION> . where this <ORG> observed as follows:

"Now, the Displaced Persons (Debts Adjustment) Act is one of the statutory measures meant for relief and rehabil-

tation of displaced persons. It is meant for a temporary situation brought about by unprecedented 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 <ORG> 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 <ORG>'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 way of court-fee which would be payable if he had to file a suit, (3) the creditor has the facility of getting his claim adjudicated upon by a <ORG> which has jurisdiction over the place where he resides, i.e., a place more convenient to him than if he had to file a suit under the ordinary law in which case he would have to file a suit at the place where the defendant resides or part of the cause of action arises. There may also be a few other minor facilities."

As pointed out above, the claim of the appellants in the present case before us was dismissed by the <ORG> on merits and the stand taken by the <ORG> which found favour with the Taxing Judge of <ORG> was that the appellants should pay ad valorem court-fees as their claim was rejected on merits.

Counsel for the appellants has submitted that the present appeal would be governed clearly by Sch. II Art. 11 of the Court Fees Act , This Article reads thus:

"11. Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and is presented.

(a) x x x

(b) to a <ORG> or Chief Commissioner, or other <ORG> or Revenue Authority.

Two rupees"

In order to attract application of this article, the following conditions must be fulfilled:

(i) that the document sought to be stamped must be a memorandum of appeal;

(ii) that the appeal should be presented to <ORG>; and

(iii)that the appeal should not be from a decree or an order having the force of a decree.

The third condition of the article is couched in a negative form thus implying that this provision would have no application to appeals against decrees. The question that falls for determination is as to whether or not the decision given by the <ORG> under the Act could be said to be a decree within the meaning of Sch. II Art. 11 of the Court Fees Act .

It was submitted by learned counsel for the appellants that the Court Fees Act and the Code of Civil Procedure being statutes complementary to each other should be read as one harmonious whole. We think that the contention is well founded and must prevail. The term "decree" as used in the Court Fees Act is a term of art and it must be deemed to have been used in the same sense as understood by the Code of Civil Procedure. It may be pertinent to note here that neither 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 <ORG> 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 <ORG>."

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 connotation as the word "decree" as explained in s. 189 of Act VIII of 1859. In the Code of Civil Procedure Act XIV of 1882 "decree" appears to have been defined for the first time and the definition may be extracted as follows.

"'decree' means the formal expression of an adjudication upon any right claimed, or defence set up in <ORG> when such adjudication so far as regards the <ORG> expressing it, decides the suit or, appeal. An order rejecting a plaint, or directing accounts to be taken, or determining any question mentioned or referred to in section 244 , but not specified in section 588 , is within this definition: an order specified in section 588 is not within this definition:"

The Code of Civil Procedure of 1908 also gave a full and complete definition of "decree" in s. 2(2) which runs thus:

"'decree' means the formal expression of an adjudication which, so far as regards the <ORG> 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."

It would be seen that an order rejecting a plaint was clearly mentioned as falling under the term "decree". In view of this clear definition of the order rejecting a plaint, it became necessary to make a corresponding change in Sch. II Art. 11 of the Court Fees Act and by Act V of 1908 the words "from an order rejecting a plaint or" used in Sch. II Art. 11 before 1908 were expressly omitted for the simple reason that an order rejecting a plaint having been incorporated in the definition of a "decree" it was not necessary to retain it in the Court Fees Act . This is the most important intrinsic evidence to show that the <ORG> in enacting the Court Fees Act used the term "decree" in the same sense as it was used in s. 2(2) of the Code of Civil Procedure, 1908 or in the code obtaining before that day. This also shows that the Court Fees Act and the Code of Civil Procedure are more or less complementary to each other. This matter was the subject-matter of a decision of this Court in <CITATION> . <NAME>, 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."

<NAME>

There are a number of other decisions of <ORG> 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. <CITATION> a Division Bench of <ORG> observed as follows "The word 'decree' has not been defined in the <ORG>fees Act or in the General Clauses Act ; and it is safe to assume that the word has been used in the <ORG>-fees Act in the sense in which it is used in the Civil P.C., under which all the decrees are passed and which defines it as meaning "the formal expression of adjudication which, so far as regards the <ORG> expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit......"

A Full Bench of <ORG> in <NAME> v. <ORG> made a similar observation where the Court observed as follows:

"To have the force of a decree, an order must possess all the characteristics of a decree. It was further held that the word "decree" has not been defined in the Court-fees Act or in the General Clauses Act , and it was safe to assume that the word has been used in the Court-fees Act in the sense in which it is used in the Civil Procedure Code."

A Division Bench of <ORG> also in <CITATION> , while interpreting the word 'decree' used in the Hindu Marriage Act , appears to have taken the same view and observed as follows:

" The Act provides under section 21 that "all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908"; that is to say, the procedure to be adopted by the <ORG>, in dealing with such proceedings will be akin to that provided for the trial of suits in a Civil <ORG>. But that does not make the proceeding a suit or the application a plaint.

x x x x x x x x Therefore, in our view, article 11 of Schedule II of the Court Fees Act will be applicable to all appeals coming under section 28 of the Hindu Marriage Act, 1955."

The later <ORG> decision of <ORG> in <CITATION> appears to have endorsed its previous view and observed as follows:

"The same result would, however, follow from a perusal of the various provisions of the Code of Civil Procedure of 1859, as it stood in the year 1870. The above provision of law, therefore, indicates that under the Code of Civil Procedure, 1859, a decree could only be passed in a proceeding which 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 <ORG> 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 <ORG> would incorporate this feature in the provisions which define the nature, scope and contents of a decree. Further, if the <ORG> wanted that Schedule II Article 11 should apply only to executable orders it could very easily have added the word "executable before "order"."

In the above case the order passed in a proceeding before <ORG> was held not to be a decree.

<CITATION> Court of Mysore observed as follows:

"In order to understand the expression "having the force of a decree" occurring in this article of the <ORG> Fees Act , it would be useful to derive guidance from the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, according to the provisions of which, a decree is a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy before the <ORG>."

In <NAME> v. <NAME> the same view was taken by <ORG> where the Court observed as follows:

"The expression "decree" is not defined either in the Court-Fees Act or in the General Clauses Act . It may, therefore, be safely assumed that this expression as used in Sch. 2, Art. 11 , Court-Fees Act , bears the meaning given to it by s. 2(2) Civil P.C. Nor can it be disputed that there is a vital difference between a "decree" and "order" in matters relating to appeals."

In <NAME> v. <NAME> <ORG> also appears to have taken the same view, where the Court observed as follows:

"I do not think this was the "formal expression of an adjudication" so as to make the order a decree within the meaning of sec. 2 of the Code of Civil Procedure. The fee payable, therefore, will be one leviable under Art. 11 of the second schedule of the Court-fees Act ."

<ORG> in Taxing officer, <ORG>, Appellate side v. <NAME> which was a case under the Displaced Persons (Debts Adjustment) Act , has clearly held that the term "decree" used in Sch. II Art. 11 of the Court Fees Act must be held to Lave the same meaning as in s. 2(2) of the Code of Civil Procedure.

Thus on a consideration of the authorities mentioned above the propositions may be summarised as follows:

Firstly, that under the definition of a "decree" contained in s. 2(2) of the Code of Civil Procedure, 1908, three essential conditions are necessary:

(i) that the adjudication must be given in a suit;

(ii) that the suit must start with a plaint and culminate in 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 <ORG> has created a special tribunal to inquire into the claims displaced debtors or creditors, the <ORG> cannot be called a <ORG> in any sense of the term because the <ORG> has made a clear distinction between a <ORG> and a <ORG>. Secondly, as the proceedings before the <ORG> start with an application and not with a plaint the other important ingredient of a decree is wholly wanting. Thirdly, the <ORG> has itself made a clear- cut distinction between a suit and a proceeding and has described the claim before the <ORG> 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 <ORG> even though the <ORG> may have described the decision as a decree A mere description of the decision of the <ORG> as a decree does not make it a decree within the meaning of  The <ORG> Fees Act . The term "decree" appears to have been used by the <ORG> to convey a sense of finality regarding the decision of the <ORG> more particularly since the adjudication of the claim, but for the Act, would have been by a Civil <ORG> and then it would have been a "decree".

Secondly, as pointed out, the object of the Act is to benefit displaced persons by providing them a cheap and expeditious remedy. The argument of Mr. <NAME> for the respondent., the he <ORG> wanted the claimants to pay heavy court-fees if they lost before the <ORG> is totally inconsistent with the aim and object of the Act. If the displaced claimants were given the right to have their claims determined on a nominal court-fee and if only one right of appeal was provided it surpa, ses one's comprehension why the <ORG> should have. intended that even if wrong orders were passed by the <ORG>, the claimants should have to pay heavy court-fees if they wanted to file an appeal to <ORG>. If the intention of the <ORG> was to provide a cheap and not expeditious remedy to the claimants, then the remedy would be incomplete if it was given only at the original stage and not at the appellate stage.

Having regard to these circumstances we are satisfied that the term "decree" used in Sch. II, Art. 11 , is referable to a decree as defined in s. 2 (2) of the Code of Civil Procedure and as the decision of the <ORG> in the instant case does not fulfil the requirements of a "decree" as mentioned above, the said decision is not a decree within the meaning of Sch. II, Art. 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sch. II Art. 11 of the Court Fees Act and ad valorem court-fees under Sch. I Art. 1 are not leviale.

Apart from the above considerations, it is a well- settled principle interpretation of statute, hat where the <ORG> uses an expression bearin a well-known legal contation it must be premised to have used the said expression in the sense in which it has been so understood. <NAME> on "Statute Law" observes as follows:

"There is a well-known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears."

In <NAME> v. <ORG> Lord <NAME> 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."

<NAME> 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 <ORG> 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 the <ORG>. The matter was fully considered in a decision of <ORG> in <NAME> case (supra) where <NAME>, J., observed as follos:

"But the expression "decree" has not been defined in the Court-fees Act . The expression "decree" as used in the Court-fees Act .,ppears to have the same connotation as that expression has in the Code of Civil Procedure. The Court fees Act is intended to be a complementary piece of legisiation to the Code of Civil Procedure dealing with payment of court-fees in matters which are tried by the civil Courts. If the expression "decree" has the same connotation as that expression has in the Code of Civil Procedure, it would be difficult to regard an adjudication made by a <ORG> appointed under the Displaced Persons (Debts Adjustment) Act as a decree within the meaning of the Court-fees Act , even though it is so called under the Displaced Persons (Debts Adjustment) Act . In order that an adjudication should amount to a decree under the Code of Civil Procedure, it must be a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. The proceedings to be initiated by displaced persons for adjustment of their debts or by displaced creditors or displaces, debtors are by applications. Such applications cannot be regarded as plaints in civil suits and are not required by law to bear ad valorem court-fee under schedule 1, cl. 1 of the Court-fees Act . It is true that the provisions of the Code of Civil Procedure are made applicable to the proceedings which are commenced by applications. But the proceedings under the Act cannot be called suits. Again the <ORG> in dealing with an application under s. 6 of the Displaced Persons (Debts Adjustment) Act is not merely deciding a claim made by a debtor, but is dealing with an application for adjustment of his debts. x x x x Even if the <ORG> has chosen to call such an award a decree, it cannot amount to a decree within the meaning of sub- s. (2) of s. of the Code of Civil Procedure and in my judgment the award cannot be regarded as a decree within the meaning of Schedule II cl. 11, of the Court- fees Act."

We find ourselves in complete agreement with the aforesaid observations made by <NAME>, J.

In <NAME> and other v. <ORG> and Others, while construing an almost identical question, <ORG> 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-matter in dispute in the appeal be held to be the relief of reliefs, claimed by the appellants in their original application, the decree, impugned being one of dismissal of the same, we do not think that any other view on the question of its valuation should be taken."

<ORG> appears to have made a distinction between a decree passed by a <ORG> dismissing the claim of a petitioner on a preliminary ground that the claimant was not able to prove his status and therefore had no locus standi to file the claim and a case where the claim was dismissed or decreed on merits. According to <ORG>, in the former case a decision given by the <ORG> would be only an order, whereas in the latter case it would be a decree. We, however, do not agree with this part of the observation because as pointed out by us the statute makes no distinction at all between the decision of the <ORG> which rejects the claim either on a preliminary point or on merits and one which allows the claim. Both these kinds of decisions have been termed as decree passed by the <ORG>. In these circumstances, therefore, there does not appear to be any warrant for the distinction which seems to have been drawn by <ORG> between a decree passed by a <ORG> on a preliminary point or that passed on merits. Even otherwise, according to the general scheme of the Code of Civil Procedure whether the suit culminates in the rejection of the claim of the plaintiff, and thereby in dismissal of the suit or in acceptance of the claim of the plaintiff, where the suit is decreed the final adjudication given by the <ORG> is a decree whether it is one dismissing the claim or one allowing it.

The distinction between a decree which is one of dismissal of the suit or a decree which amounts to an acceptance of the claim of the plaint is too artificial to merit any consideration. While, therefore, we do not agree with some of the observations of <ORG>, we fully agree with the other part of observations where <ORG> has held that ad valorem court-fees are not payable.

Similarly, in <CITATION> , a Full Bench of <ORG> observed x x x x x x "We are therefore of opinion that the order passed in this case, though it finally determined the application of the appellant, was not a decree, because 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 claim on merits. Barring this disinction made by <ORG>, which we do not approve, we are in agreement with the other observations made by <ORG> which are to the effect that the order passed by the <ORG> not being a decree clearly falls within the ambit of Sch. II, Art. 11 , of the Court Fees Act .

In a later decision of the same <ORG> in <ORG> v. <ORG> the Court observed as follows:

"On an analysis of section 18(2) , it cannot be said that the order under appeal passed by the learned Civil Judge is a decree or order having the force of a decree. The appellant was, therefore, not liable to pay ad valorem court-fee as required under Schedule I, Art. 1 , of the Court Fees Act . . . . The tribunal is competent to pass a decree only after submitting a report to <ORG> and after receiving their proposal. If this is not done and the application is rejected on the ground that the loss did not take place in the circumstances specified in section 18(1) that order cannot be said to be a decree. The reasoning of the <ORG> case with regard to sec. 11(2) is applicable to the present case which is under sec. 18."

<ORG> in <CITATION> . appears to have taken the same view and observed as follows:

"Having regard to the general purpose of the Act, which is almost entirely intended to benefit displaced persons and relieve them from the hardships consequent on their displacement, I do not think there can be any doubt that the Act was intended to benefit all displaced persons who had property in West Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15-8-1947 and in force at the time when the loss or damage was sustained, whether this occurred before or after the 15th of August.

x x x x x .

My own view is that it was certainly never anybody's intention that displaced persons, whether debtors or creditors should have to pay 'ad valorem' court-fees on appeals against orders dismissing their applications, and I am inclined to share the view of <NAME>, J., that an order dismissing an application, whether under s. 5 or s. 10 or 13, is merely a final order which does not necessitate the drawing up of any decree-sheet or amount 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 <NAME>, J., in the decision referred to above.

Our attention was, however, drawn by the learned counsal for the respondents to three decisions of <ORG> taking contrary view, namely, <NAME> v. <NAME>; <NAME> v. <NAME> and <CITATION> . These decisions have on doubt held that decision of the <ORG> 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 decisions have also overlooked the main purpose and object of the Act and seem to have also ignored the rule of strict interpretation of a fiscal statute. For these reasons, therefore, that the court-fee of Rs. 5/- paid by the appellants on the cannot be held to be good law and must, therefore, be over-ruled.

On a consideration of the facts, circumstances and the law on the subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch. II, Art. 11 , and the view of the Taxing Judge that ad valorem court-fee was payable under Sch. I, Art. 1 , of the Court Fees Act was legally erroneous. We hold, therefore, that the court-fee of Rs. 5/- paid by the appellants on the memorandum of appeal was sufficient.

Before concluding we must notice an argument advanced by the learned counsel for the respondents. It was submitted that under s. 5 of the <ORG> Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any <ORG>. It was submitted by Mr. <NAME> that in view of this provision the appeal to this <ORG> by special leave was not maintainable. We are, however, unable to agree with this contention. Even though an order of the Taxing Judge may be final under s. 5 of the <ORG> Fees Act, the power of this <ORG> under Art. 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by <ORG>. The finality which may attach under s. 5 of the <ORG> Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme <ORG>. Reliance, however, seems to have been placed on a decision of this <ORG> in <CITATION> and particularly on the following observations made by this <ORG>:

"In our opinion, the decision of <ORG> of <ORG> that the memorandum of appeal should be taxed for the purposes of <ORG> fee under s. 7(iv) (b) of the Act is final under the provisions of s. 5 of this Act. That is why we have not allowed the merits of this order to be questioned in the present appeal. We must, therefore, deal with the appellant's contention on the basis that the court fees on his memorandum of appeal must be levied under s. 7(iv) (b) of the Act."

These observations prima facia seem to support the contention of the respondents but on a closer scrutiny of the entire decision it seems to us that this <ORG> was not at all called upon to decide the question of the effect of s. 5 of the <ORG> 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 <NAME>, J., who spoke for the <ORG>, where he has clearly mentioned that the <ORG> 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 <ORG> was satisfied with the observations made by the <ORG>, 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 <ORG> 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 score must be overruled.

The result is that the appeal is allowed, the order of the Taxing Judge directing payment of the ad valorem court- fees is set aside and <ORG> is directed to hear and dispose of the appeal in accordance with the law on the court-fee already paid by the appellants which, in our opinion, is sufficient. In the peculiar circumstances of this case and in view of somewhat uncertain position of the state of law, we make no order as to costs.

P.B.R. Appeal allowed.


JUDGMENT <NAME> and <NAME>, JJ.

1. It is now contended in second appeal: (1) that the application of the 15th August 1888 ought to be regarded as a continuation of the application filed on the 11th June 1883; and (2), that the suit instituted by the decree-holder on the 22nd March 1884, and the appeal presented to <ORG>, ought to be regarded as being in the nature of applications to take some step in aid of the execution of the decree; and that the decree-holders ought to be allowed to reckon their time either from the 22nd July 1887, or from the 29th March 1886. In support of the first of these contentions several cases have been cited amongst which we may mention Pyaroo Tuhovildarinee v. Nazir Hossein 23 W.R. 183, <CITATION> . 4 Cal. 435, <CITATION> . 14 Cal. 385, and <CITATION> . 1 All. 355.

2. We have heard the learned <NAME> for the appellant at some length on the point, and we think that all that it was possible to urge in furtherance of the appeal has been urged before us; but we are unable to give effect to his contention. The cases cited are all distinguishable from the present in this respect, namely that in those cases the execution-proceedings were either interrupted by an intermediate order, which was afterwards set aside, or were rendered infruetuous, so as to make a fresh application necessary, as was the case in <CITATION> . 14 Cal. 415, and in these cases, the second application could not have been made for a time by reason of the state of things that intervened, though in not making the second application earlier, no blame attached to the decree-holder. That this was the reason for the rule laid down in those cases will appear from the observations of <NAME>, J., in the case of <NAME>, v. <NAME> 23 W.R. 183. In that case, the learned Judge observes: "Whatever may be the form of the last application, dated the 5th December 1873, in substance it was an application to the <ORG> for the continuation of the former proceedings on the ground that the bar that was set up by reason of the adverse order under Section 246 had been removed by the decision in the subsequent regular suit." And in the case of <CITATION> . 1 All. 355, <NAME>, C.J., observes: "The interruption to the execution of his decree was not occasioned by any fault or laches of his own, but was caused by the illegal intervention of <NAME>. <NAME> procedure, therefore, under his decree, must beheld to have been legally continuous, and he may proceed to its execution." Now, it is clear that in the present case those considerations have no application. It is clear that the decree-holders could, notwithstanding the order in the claim case, have prosecuted their application for execution against the one-third share which was not released then quite as well as they can do so now. Their present application is for the sale of that third share of the property; there was no bar then to their enforcing the execution of the decree, and there has been no subsequent removal of that bar. The reason of the decisions not applying to the present case, they cannot afford any ground for holding that the present application is a continuation of the application of the 11th June 1883.

3. Then, as regards the second ground, no doubt the case cited in the argument, Akbar Gazee v. Bibee Nufeezun 8 W.R. 99, lends some support to it, but that was a case under the old Limitation Law (Act XIV of 1859), the language of which was very different from that of the present law. Clause 4, Article 179 of the second schedule of the Limitation Act provides, that the three years may be reckoned from the date of applying, in accordance with law, to the proper <ORG> for execution, or to take some steps in aid of execution of any decree or order," etc. Now, seeing that the Limitation Act XV of 1877 draws a clear distinction between suits and applications, it would be difficult to construe these words to include a suit for setting aside an order in a claim case. "Proper <ORG>," again, as defined by Explanation II of that article, means the <ORG> whose duty it is (whether under Section 226 or Section 227 of the Code of Civil Procedure or otherwise) to execute the decree or order," Therefore, evidently the provision of law just referred to contemplates an application made in the course of execution to the <ORG> whose duty it was to execute the decree, and cannot be taken to include a suit to have an order in a claim case set aside.

4. We therefore think that <ORG> was right, and that this appeal must be dismissed with costs.