JUDGMENT : ( 1. ) THE question for consideration is as to what is the court-fee payable on the appeal preferred under Clause 10 of the Letters Patent against the judgment of the learned Single Judge in First Appeal. According to the appellant, the appeal being against the judgment and not decree Article 11 of the Schedule II of the Court Fees act is applicable and fixed fee of Rs. 7. 50/-is payable, but according to the respondent the judgment is nothing but decree and ad valorem court-fee is payable under Article 1 of Schedule I. ( 2. ) CLAUSE 10 of the Letters Patent of this Court provides for appeal against the judgment of one Judge of the Court. The appeal is against the judgment and not the decree. In England the word judgment is generally used in the same sense as a decree in the Code of Civil Procedure. In the Code decree is defined as formal expression of adjudication, conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. judgment is defined as the statement given by the Judge of the grounds of the decree. The Privy Council in Sevak jaranchod Bhogilal vs. The Dakora Temple Committee, AIR 1925 PC 155, in which the term judgment in the Letters Patent has been construed to mean in civil cases a decree and not a judgment in the ordinary sense. The Privy Council was considering clause 39 of the Letters Patent of the Bombay High Court, providing for appeal to the privy Council against the final judgment, decree or order and is not identical to clause 15 (clause 10 of our Letters Patent) providing for appeal to High Court against the judgment of Single Judge. ( 3. ) HOWEVER, the classic definition of judgment in Letters Patent is of Couch, C. J. in Justice of the Peace for Calcutta vs. Oriental Gas Co. , 8 BLR 433, to mean a decision which affects the merits of the question between the parties by determining some right or liability, it may either be final or preliminary or interlocutory, the difference between these being that the final judgment determines the whole cause or suit while preliminary or interlocutory judgment determines only part of it, leaving other matters to be determined. It was made clear that the word judgment in Letters patent has a different meaning. The definition has been generally accepted by various decisions. The Full Bench of the Madras High Court in Tuljiram vs. Alagappa, 35 madras I, held that the order in an independent proceeding which is ancillary to the suit but with a view to rendering the judgment effective, if obtained, is a judgment. The full bench of the Rangoon High Court in Dayabhai vs. Muruguppa, AIR 1935 rangoon 267, and this Court in Manohar vs. Baliram, AIR 1952 Nag. 357, on the other hand held judgment means and is decree in a suit by which rights of the parties in the suit are determined, in fact, controversies were as to what orders specially interlocutory orders come within the purview of judgment in Letters Patent. But the controversy is set at rest by the Supreme Court by preferring the Calcutta and Madras views and overruling the Rangoon and Nagpur views in Shanti Kumar vs. Home insurance Co. , AIR 1974 SC 1719 . The Court held that in finding whether the order is a judgment within clause 15, it has to be found out that the order affects the merits of the action between the parties by determining some legal right or liability. A large number of decisions were cited before me to show what orders are judgments but those decisions have no relevance here because we are considering this appeal against the judgment of the Single Judge finally disposing of the First Appeal. So there can be no dispute that it is a judgment within Clause 10. We have to see as to whether in fact the appeal against the judgment in regular appeal is in effect an appeal against the decree. ( 4. ) THE controversy here is not whether it is a judgment or not but as to what is the court-fee payable on the appeal. Under Article 11 of Schedule II of the Court Fees act, fixed court-fee stamp of Rs. 7. 50/- is payable on the memorandum of appeal when it is not from a decree or order having the force of a decree. Under Article 1 of schedule I, ad valorem court-fee is payable on other appeals i. e. against the decree or order having the force of a decree. 7. 50/- is payable on the memorandum of appeal when it is not from a decree or order having the force of a decree. Under Article 1 of schedule I, ad valorem court-fee is payable on other appeals i. e. against the decree or order having the force of a decree. Earlier Letters Patent Appeals lay in second appeals only as first appeals used to be heard by the Division Bench. Ad valorem court-fee used to be paid and recovered on such appeals. Now Letters Patent Appeal has been abolished in second appeals by Amending Act No. 106 of 1976. But now first appeal of valuation up to Rs. 20,000/- is heard by the Single Bench under the amended rules and there can be no doubt that ad valorem court-fee is payable on the Letters patent Appeal against judgment in first appeal because in fact the appeal is against the decree. If that is not so, then in the appeal the impugned judgment may be set aside and not the decree, creating anomalous position. So in effect the Letters Patent appeal is an appeal against the decree and ad valorem court-fee is payable. The judgment has finally determined the matters in controversy in the appeal and embodies in itself the formal expression of adjudication and in fact a decree has been drawn in terms of it, ( 5. ) I am fortified in my decision by a Full Bench of the Delhi High Court in begum Aftab vs. S. Lal Chand, AIR 1969 DELHI 85, wherein it has been held as under "where the judgment conclusively determines rights of the parties with regard to the matters in controversy in the suit and embodied in itself the formal expression of the adjudication merely because as the result of the adjudication, it purports also to grant a decree, would not deprive the judgment of the characteristics of a decree for the purpose of the Court-fees act. For the purpose of court-fee, therefore, the Court will have to consider in each case whether the judgment falls within the contemplation of Article 11, Schedule II of the Court-fees Act, because of its not amounting to a decree in the sense of finally disposing of a suit or an order having the force of a decree or whether it is a judgment which, without so amounting, otherwise materially affects the rights of the parties so as to give rise to a right of appeal under Section 10 of the Delhi High Court Act. If the judgment does not fall under Article 11 of Schedule II the appeal would be governed by Article 1 of Schedule I. Where the judgment, besides embodying a decision on a dispute affecting the merits, also contains all the criteria of a decree, the case quite clearly falls within the purview of Article 1, Schedule I of the Court Fees Act and is subject to payment of ad valorem court-fee. " The Calcutta High Court in Sohrab Modi vs. Manasta Film Distributors, AIR 1957 Cal 727 , has held that the term judgment has been defined in the Civil procedure Code, but that definition does not apply to the word as occurring in the letters Patent. The language of the Letters Patent which were issued in 1865 is not the language of the Indian Legislature, but the language of the English lawyers as it was in use amongst them before, the words judgment, decree and order came to be clearly differentiated after the passing of the Judicature Acts. Similar is the view taken by a single Bench of the Allahabad High Court in Raman Lai vs. Murari Lal, 1961 All Law journal 561 :- "the word "judgment" in Chapter VIII, Rule 5 of the Rules of Court must be interpreted in its own setting and not with reference to the definition clauses of the Civil Procedure Code or with reference to the right of appeal granted by the Civil Procedure Code. Under the circumstances the court-fees on memorandum of special appeal is exigible under Schedule I, item I and not under Schedule II, Item 11. The language of Chapter VIII, Rule 5 of the Rules of the Court follows the language of the Letters Patent, 1866, which was applicable to this Court. Under the circumstances the court-fees on memorandum of special appeal is exigible under Schedule I, item I and not under Schedule II, Item 11. The language of Chapter VIII, Rule 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 U. P. Amalgamation of High Court Order it became necessary to enact Rule 5 so as to make a provision similar to that of Clause 10 of the repealed Letters patent the same language was re-employed. Hitherto whether in respect of appeals under the Letters Patent or in respect of appeals under Chapter VIII, Rule 5, court fee has been demanded and paid under the provisions of Schedule I, Item No. 1 and not Schedule II, item II of the Court Fees Act and unless there are very cogent reasons it would not be right for me to disturb the current practice. " ( 6. ) THE Supreme Court decision in Diwan Bros. vs. Central Bank, Bombay, AIR 1976 SC 1503 , is clearly distinguishable wherein it has been held as under :- "the term decree used in Schedule II, Art. 11 of the Court Fees Act is referable to a decree as defined in Section 2 (2) of the Civil Procedure Code. The decision of the Tribunal constituted under Displaced Persons (Debts adjustment) Act either allowing a claim or rejecting a claim, though described as a decree within the meaning of the Court Fees Act. The decision does not fulfil the requirements of a decree within the meaning of the Schedule II, Article 11 of the Court Fees Act. Therefore, the memorandum of appeal filed by a person aggrieved by the decision of the tribunal squarely falls within the ambit of Schedule II, Article 11 of the court Fees Act and ad valorem Court Fees under Schedule I, Article 1 are not payable. 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 Pr6cedure. Neither the Court Fees Act nor the Displaced persons (Debts Adjustment) Act has defined the term decree. 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 Pr6cedure. Neither the Court Fees Act nor the Displaced persons (Debts Adjustment) Act has defined the term decree. Further there is intrinsic evidence to show that the Legislature in enacting the Court Fees act used the term decree in the same sense as it was used in Section 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. Further under the definition of a decree* contained in Section 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. " There the question was as to what court-fee has to be paid on the memorandum of. appeal against the order of the Tribunal under Displaced Persons (Debts adjustment) Act, 1951. Though the order is described as decree in the Act, the supreme Court held that it is not a decree as defined in the Code of Civil Procedure because the adjudication is not in a suit. Here the appeal is in fact against the judgment and decree passed in regular first appeal under Section % of the Code. ( 7. ) THEREFORE, ad valorem court-fee is payable on the memo of appeal. Order accordingly.