JUDGMENT R.N. Gurtu, J. - The short question before me is whether on the memorandum, of appeal filed in this Court under the provisions of Ch. VIII, R. 5 of the Rules of the Court, court fee is payable under Schedule I, Item No. 1 of the Court Fees Act or Sch. II Item No. 11 of the same Act. Learned Counsel Mr. A.P. Pandey has invited my attention to the language of R. 5 of Ch. VIII of the aforesaid Rules of Court, which in its relevant part runs as follows:- An appeal shall lie to the court from the judgment of one judge. and has contended that at appeal preferred u/R. 5 is from a judgment and not from a decree. He therefore contends that court fee is payable under Sch. II, Item 11 of the Court Fees Act, which may now be quoted:- "II Memorandum of appeal when the appeal is not from a decree or order having the force of a decree and is presented TO HIGH COURT A H RT Three Rupees twelve annas -Rupees Five 2. Under Sch. I Item Number 1 of the Court Fees Act, court fee ad valorem is payable, inter alia, on memoranda of appeals presented to any Civil court except those for which special provision has been made in the Act. Learned Counsel contends that Sch. I, Item No. 1 of the Court Fees Act applies only to appeals filed, inter alia from decrees, and he contends that an appeal under Ch. VIII, R. 5 of the Rules of the Court in not an appeal from a decree but only from a judgment. 3. The language of Ch. VIII, R. 5 of the Rules of the Court follows the language of the Letters patent, 1866, which was applicable to this Court. And when in consequence of the repeal of our Letters patent by the UP Amalgamation of High Court Order it became necessary to enact R. 5 so as to make a provision similar to that of Cl. 10 of the repealed Letters Patent he same language was re-employed. 4. The language used in Cl. 10 of the repealed letters patent, it is conceded by Mr. Pandey, was not the language of an Indian Legislature but was the language of English lawyers and Mr. 10 of the repealed Letters Patent he same language was re-employed. 4. The language used in Cl. 10 of the repealed letters patent, it is conceded by Mr. Pandey, was not the language of an Indian Legislature but was the language of English lawyers and Mr. Pandey concedes that the word judgment in the mouth of English Lawyers in 1866, when the Letters Patent applicable to us was framed, included a decree. Mr. Pandey cited the case of Shorab Merwanji Modi and Another Vs. Mansata Film Distributors and Another, AIR 1957 Cal 727 , on which the concession is based. 5. I find from 36 and 37 Victoria, 1873, Ch. 66, which contains the Act for the constitution of a supreme Court, and for other purposes relating to the better Administration of Justice in England, and to authorise the transfer to the Appellate Division of such Supreme Court of the Jurisdiction of the Judicial Committee of Her Majesty's Privy Council, that in S. 100 of the said Act the word "Judgment" is defined as including a decree. There can be no doubt that in the mouth of English Lawyers about the year when our Letters Patent was drawn up the word "Judgment" did include "decree". 6. I find that even under 15 and 16 George 5, 1925 Ch. 49 which is in Act to consolidate the Judicature Acts, 1873 to 1910 and other enactment relating to the Supreme Court of Judicature in England and the administration of justice therein, that the term "judgment" u/s 25 of the last mentioned Act includes a decree. In the circumstances therefore it seems desirable to interpret the word judgment used in Ch. VIII, R. 5 of the Rules of the Court, as including a decree and to hold that when R. 5 provides for an appeal to be from a judgment and the decree based thereon. In point of fact the practice of this Court is that a decree is drawn up after the judgment of a learned single judge exercising appellate jurisdiction is given. A decree is also drawn up after judgment in the Special Appeal is pronounced. In point of fact the practice of this Court is that a decree is drawn up after the judgment of a learned single judge exercising appellate jurisdiction is given. A decree is also drawn up after judgment in the Special Appeal is pronounced. If the word "judgment" was to be construed as not including a decree, then the position would be that in a special Appeal while that judgment could be set aside which was the foundation of the learned Single Judge's decree, the decree itself could not be varied or affected because it would not be under appeal. Mr. Pandey suggests that it would not be necessary to vary the decree of the learned single Judge because that decree would fall automatically upon reversal of his judgment. But in my view it is clear that unless R-5 meant that the judgment and decree were both under appeal the decree could not be set aside. 7. Hitherto whether in respect of appeals under the Letters Patent or in respect of appeals under Ch. VIII R. 5, court fees has been demanded and paid under the provisions of Sch. 1, Item No. 1 and not Sch. II, Item 11 of the Court Fees Act and unless there are very cogent reasons it would not be right for me to disturb the current practice. 8. Mr. Pandey has. however, vigorously argued that our CPC clearly defines a decree separately from a judgment or from an order and he points out that under the CPC appeals lie either from decrees or orders and not from judgments excepting in the case of revisions where the record is directed to be sent for when the court is satisfied. Although S. 117 makes the CPC applicable to the High Court it has to be borne in mind that the special appeal under Ch. VIII, R. 5 of the Rules of Court is not an appeal under the CPC. In the circumstances, even though the distinction between a decree and a judgment and an order are clearly maintained under the CPC, there is no reason to limit the meaning of the word "Judgment" given in R. 5 of Ch. VIII of the Rules of the Court for that reason. The appeal under Ch. VIII, R. 5 of the Rules of the Court is a creature of R. 5 and it has to be observed that Ch. VIII of the Rules of the Court for that reason. The appeal under Ch. VIII, R. 5 of the Rules of the Court is a creature of R. 5 and it has to be observed that Ch. IX, R. 10 of the same Rules makes provision for the period of limitation and for the condonation of delay in filing the special appeal. Therefore the provisions seem to be self contained and in my view it would not be right to disregard the fact that the right of filing a special appeal flows from the Rules. And if this is kept in mind, clearly the word 'judgment" in R. 5 must be interpreted in its own setting and not with reference to the definition clauses of the CPC or with reference to the rights of appeal granted by the CPC. Under the circumstances I am of the view that court fees is exigible in this case under Sch. 1 Item 1 and not under Sch. II, Item 11 as contended by Learned Counsel. 9. Learned Counsel asks for a month's time to make good the exigible court fees in this case. I grant the time prayed for.