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1990 DIGILAW 63 (MAD)

P. Kanthammal v. D. S. Rajalakshmi

1990-01-18

RATNAM, THANIKKACHALAM

body1990
Judgment :- Ratnam, J. 1. O.S.A. S.R. No. 97884 of 1984 is sought to be preferred by the 2nd defendant in C.S. No. 82 of 1977, against the judgment and decree dated 30-11-1988 passed in that suit. That suit was laid for the recovery of amounts due under two mortgages dated 24.8.1955 and 10.7.1964. Some defences were raised by the appellant in the O.S. Appeal and the other defendant, in the suit, but ultimately, Maheswaran, J. held that the appellant in the O.S. Appeal will not be personally liable for the debts, though the properties claimed by her as belonging to her are liable to be proceeded against, as she did not have any title to those properties. The appellant seeks to question the correctness of this adjudication in the intended O.S. appeal. 2. In the memorandum of valuation, the appellant had given the value of the suit at Rs. 1,96,220-20 and had further stated that a fixed court fee of Rs. 100 is paid under Schedule II Article 3(A) (2) (C) of the Court fees Act. The Registry entertained a doubt whether having regard to the initiation of the proceedings on the Original Side of this Court, the specific provisions made in the High Court fees Rules would apply and not Schedule II, Article 3(A) (2) (C) of the Tamil Nadu Court fees and Suits Valuation Act and that is how the matter has been placed before us. 3. Article 3(A) (2)(C) of the Second Schedule to the Tamil Nadu Court fees and Suits Valuation Act 1955 (hereinafter referred to as the Court Fees Act for short) provides for the payment of court fee on memorandum of appeal arising under Clause 15 of the Letters Patent, in any other case, at Rs. 100. Article 3(A) to the Second Schedule of the Court Fees Act generally makes provision for payment of court fee in appeals against orders to the High Court and Article 3(A) (2) of the Second Schedule provides for a particular category of appeals against orders under Clause 15 Letters Patent. 100. Article 3(A) to the Second Schedule of the Court Fees Act generally makes provision for payment of court fee in appeals against orders to the High Court and Article 3(A) (2) of the Second Schedule provides for a particular category of appeals against orders under Clause 15 Letters Patent. With reference to the payment of court fee in appeals arising out of proceedings on the Original Side of this Court, particularly against a judgment and decree in a suit, the provision under Art. 3(A) to the Second Schedule generally relating to payment of court fees in appeals against order and Article 3(A) (2) of the Second Schedule providing for payment of court fee in Letters Patent appeals against orders, will have no application. Thus, the payment of Court fee in the appeal against the judgment and decree in C.S. 82 of 1977 under Article 3(A) (2) (C) of Schedule II is not in order. We may in this connection make a reference to the High Court fees Rules 1956. Order II Rule 1(1) of the Madras High Court Fees Rules 1954, provides that on or after 19.5.1956, on all proceedings arising by way of appeal, court fee shall be levied according to the provisions of the Tamil Nadu Court fees and Suits Valuation Act, 14 of 1956. That would mean that under S. 52 of the Court Fees Act, the fee payable in the intended 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. But this rule has been struck down by the decision in Sriramlu v. Registrar, High Court, Madras 1 . But this rule has been struck down by the decision in Sriramlu v. Registrar, High Court, Madras 1 . However, under Order II Rule 1-A of the High Court Fees Rules 1956, it has been provided that notwithstanding anything contained in sub-Rule (1) of Rule 1 of Order II of the High Court fees Rule 1956, the fees in all suits and proceedings instituted after 11.9.1968 and all proceedings by way of appeal or otherwise arising therefrom, shall be levied according to the scale of fee set out in Appendix 1-A. Appendix 1-A provides for payment of court fee in a memorandum of appeal arising from a judgment passed by the High Court in the exercise of its Ordinary Original Civil Jurisdiction and not otherwise providedf or in Article 3, Schedule II of the Court fees Act and the fees payable on such a memorandum of appeal has also been set out thereunder. The suit, against the judgment and decree in which the O.S. Appeal is intended to be filed, was insti-uted in 1977. We have already pointed out that Article 3 (A) Schedule II of the Court fees Act provided only for payment of court fee with reference to appeals against order as enumerated therein and that would not have any application when the intended appeal is against the judgment and decree passed in a suit instituted on the Original Side of this court. It therefore follows that in the absence of the applicability of Article 3, Schedule II of the Court fees Act, to the present proceedings, the court fee payable on the memorandum of appeal would be governed by Rule 1-A of Order II of the High Court fees Rules, 1956 read with Appendix I-A. The appellant would therefore, be liable to pay the court fee on the aforesaid basis and the court fee already paid is not correct. 4. Learned counsel for the appellant prays that the appellant may be granted three months time to make good the deficiency in the court fees and we accordingly grant the appellant three months time from today to do so. The Office note is answered accordingly.