Judgment :- 1. A question of court-fee falls for consideration before us. The respondent in 0 P. (H.M A.) 84 of 1977 filed under S.28 of the Hindu Marriage Act, 1955 is the appellant Court-fee of Rs 10/- was paid under Schedule.11-3 (iii) (A) (1) (b) of the Kerala Court-Fees and Suits Valuation Act, for short, the Act. (On the appellant's contention the proper court-fee will be Rs. 5/-.) The Taxing Officer has objected to the court-fee paid. His stand is that the appeal falls under Art.1(vi) read with S.52 of the Act since the order under appeal has the force of a decree. 2. The appellant's counsel Mr. Moosa took us through some of the entries in Schedule II of the Act and contrasted it with the entry relating to the Hindu Marriage Act. Art. F (ii), (iii) and (iv) prescribe court-fee for petitions, claims or memorandum of appeal while schedule II (1)(vi) prescribes court-fee for petitions alone. This provision is silent about the court fee on memorandum of appeal. He submits that the court-fee payable in the appeal is governed by the residuary clause contained in Art.3(iii) (A)(1)(b). This plea is met by the Government Pleader with the submission that an order in a petition under the Hindu Marriage Act is a decree and when there is no specific provision for court-fee, the general rule should apply, which is what is laid down in S.52 of the Act. If this section applies, court-fee paid in the Court below should be the fee payable in appeal also. The appellant's counsel submitted that unless the order in question answered to all the requirements of a decree as laid down in S.2(2) of the Code of Civil Procedure, S.52 could not be invoked. It is further argued that S.52 applies only to cases where court-fee varies with the subject-matter of the lis and not where the court-fee is fixed irrespective of the subject-matter. 3. A similar question was considered by another Division Bench of this Court in another M.F.A. (Unnumbered), later numbered as M.F.A. 370 of 1930. The same plea as is now put forward was repelled and the appellant there was directed to pay in appeal the same court-fee that was paid in the O.P. 4. Counsel for the appellant referred us to a Division Bench decision of this Court reported in Devassia v. State of Kerala (1965 KLT. 69). The same plea as is now put forward was repelled and the appellant there was directed to pay in appeal the same court-fee that was paid in the O.P. 4. Counsel for the appellant referred us to a Division Bench decision of this Court reported in Devassia v. State of Kerala (1965 KLT. 69). That was a case which related to the sufficiency of the fee paid in a writ appeal filed under S.5 of the High Court Act. This decision was noted by the Division Bench in the aforementioned M.F.A. Viswanatha Iyer J who spoke for the Bench, did not agree with the observations in 1965 KLT. 69 in relation to the operation of S.52 of the Act. Said the learned Judge: "There is a passing reference in it to the scope of S.52 of the Act. M.S. Menon C.J., has taken the view that S.52 will apply only to eases of appeals from suits mentioned in S.22 to 50. Madhavan Nair J., did not go that much and he rested his conclusion on the fact that as there is a special provision in respect of appeals to the High Court under S.5 of the High Court Act, the general provision in S.52 has no application." The learned Judge further observed: "S. 52 is a general provision relating to appeals. It provides that the fee payable in an appeal shall be the same as the fee that would be payable in a Court of first instance on the subject-matter of the appeal. It is not limited to appeals from suits provided for in S.22 to 50. The language of S, 52 does not warrant such a conclusion " With great respect, we endorse this view. The observation in 1965 KLT. 69 that S.52 will apply only to cases where the subject-matter will vary is open to doubt. Since a further investigation into that aspect is not strictly necessary in this case, we do not propose to discuss the question further. 5. This appeal is from a decree. Art.3 (iii) in Schedule II prescribes court-fee payable in memoranda of appeals from an order. Since the order in question passed under the Hindu Marriage Act is a decree it is clear that the provision quoted above cannot apply. 5. This appeal is from a decree. Art.3 (iii) in Schedule II prescribes court-fee payable in memoranda of appeals from an order. Since the order in question passed under the Hindu Marriage Act is a decree it is clear that the provision quoted above cannot apply. If Art.3 of schedule II does not apply, then the only provision that can apply for" computation of court-fee is Art.1 (vi) read with S.52. S.62 reads: "52. Appeals. The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal." This section is not limited in its terms to appeals from any distinct category of proceedings. The emphasis is on the subject-matter. The subject-matter of appeal here is the same as the subject-matter of the petition filed in the Court of first instance. S 52 directly applies. Court-fee payable is the same court-fee that is paid in the court of first instance. 6. The appellant's counsel contended that though under the Hindu Marriage Act decisions under S.9,10, 11, 12 and 13 would be decrees, they are not decrees under S.2 (2) of the Code of Civil Procedure and therefore insistence on payment of court-fee for an appeal as an appeal from a decree is bad. He referred us to the decisions reported in Antala Gope v. Sarbo Gupain (AIR. 1962 Patna 489) and in Bai Umiyabhen v. Ambalal (AIR. 1966 Gujarat 139). In the earlier case it is observed that use of the word 'decree' in S 13 of the Act was only to distinguish it from the word decree as is defined in the Code of Civil Procedure. In the other case, a Division Bench of the Gujarat High Court was considering the question whether a second appeal would lie from an appellate judgment arising from proceedings under the Hindu Marriage Act, 1955. We refrain from considering these two decisions at length, though with respect, we have our reservations about some observations made therein, since the question posed before us admits of no doubt. The appellant's contention is to treat the decision under appeal as an order though it is termed decree under the Act. This will be doing violence to the various sections of the Act especially S.28 which provides for appeals. The appellant's contention is to treat the decision under appeal as an order though it is termed decree under the Act. This will be doing violence to the various sections of the Act especially S.28 which provides for appeals. The provisions in Schedule II of the Act of which mention has already been made, has provided for court-fees not only for petition and plaint but also on memoranda of appeals. The Hindu Marriage Act came into force in 1955 while the Court Fees Act came into force in 1959. It is significant that the Legislature designedly omitted to mention memorandum of appeal in Schedule II (1) (vii) of the Act. Since the decision under appeal cannot be termed an order but is only a decree, court-fee has to be paid under S 52 of the Act We hold that the court-fee payable" is Rs. 30/-. In the result, we uphold the objection of the Taxing Officer and direct the appellant to pay additional court-fee of Rs. 20/-. Time for payment of court-fee one month from to-day.