Judgement VIJAY KUMAR SHRIVASTAVA, J. :- This order will govern payment of Court-fee in memo of appeal from the judgment/order passed by a Single Judge of this High Court in exercise of the original jurisdiction to a Division Bench of the same High Court. Learned single Judge of this High Court passed a final order dated 5-7-2006 in Writ Petition No. 1774/1992 whereby petition has been dismissed summarily. Appellant instituted the instant appeal against the order passed by one of the learned single Judges of this High Court for hearing to a Division Bench. In memo of appeal he only paid court fees of Rs. 15/- by affixing the court fee stamp of the same, therefore, Registry of this Court raised an objection that court fees of Rs. 85/- is deficit in memo of the instant writ appeal. Instead of removing the default, learned counsel for the appellant objected before the Registry that no provision for payment of court fee has been made in the Chhattisgarh High Court Rules, 2005, therefore, the matter has been listed for resolving the dispute regarding payment of court fees in such intra-court appeals. Realization of court fees being a matter of revenue of the State, learned Advocate General was also requested to assist the Court in determining the court fees payable on such appeals. Accordingly, learned Advocate General assisted the Court by his address, also learned counsel for the appellant was heard. 2. Brief history : M. P. Reorganization Act, 2000 (hereinforth, "the Act") came into existence from the appointed day i.e, 1-11-2000. In accordance with Section 21 of the Act, High Court of Chhattisgarh has been constituted and jurisdiction as envisaged in Section 23 of the Act, has been conferred on the High Court which enshrined that the High Court of Chhattisgarh shall have, in respect of any part of the territories including in the State of Chhattisgarh, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of that part of the said territories by the High Court of Madhya Pradesh. It is settled legal position that right of appeal is a creature of the statute, and there being no statute applicable to the State of Chhattisgarh for intra court appeal the State of Chhattisgarh enacted the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006" (Act No.1 of 2007) (henceforth, 'the Act') and thereby from 6-1-2007 following law for intra court appeal has come in force: THE CHHATTISGARH HIGH COURT (APPEAL TO DIVISION BENCH) ACT, 2006 An Act to provide for an appeal from a judgment or order passed by one Judge of the High Court in exercise of the original jurisdiction to a Division Bench of the same High Court. Be it enacted by the Chhattisgarh Legislature in the fifty-seventh year of the Republic of India as follows : 1. (1) This Act may be called the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006. (2) It shall come into force from the date of publication in the Official Gazette. 2. (1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of the same High Court. Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. (2) An appeal under sub-section (1) shall be filed within 45 days from the date of order passed by a single Judge. Provided that any appeal may be admitted after the prescribed period of 45 days, if the petitioner satisfies the Division Bench that he had sufficient cause for not preferring the appeal within such period. Explanation :- The fact that the petitioner was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient within the meaning of this sub-section. (3) An appeal under sub-section (1) shall be heard and decided in accordance with the procedure as may be prescribed by the High Court. 3. (1) The High Court may, from time to time, make rules for carrying out all or any of the purposes of the Act. (3) An appeal under sub-section (1) shall be heard and decided in accordance with the procedure as may be prescribed by the High Court. 3. (1) The High Court may, from time to time, make rules for carrying out all or any of the purposes of the Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for the procedure of filing, hearing and disposal of appeal under sub-section (3) of Section 2. 4. (1) The Chhattisgarh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981 (No. 29 of 1981) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under or in pursuance of the said Act and which has attained finality shall not be reopened in any Court of law." 3. High Court of Chhattisgarh has also framed rules for practice and procedure, relevant portion thereof reads as below : "10. Writ Appeals : An appeal to a Division Bench from judgment of a Single Judge may lie in the following cases. (e) The practice direction in regard to First Appeal should mutatis mutandis apply in respect of Original Side appeals against final judgments of the single Judge. 4. In view of the above, although a right of appeal has been conferred on a litigant who may appeal to the Division Bench of the High Court from a judgment or final order of the Judge of the High Court in exercise of original jurisdiction of the High Court, but in specific term neither in Court Fees Act, 1870 (henceforth, "the Act 1870") nor in the Act or High Court of Chhattisgarh Rules 2005, any provision has been made for payment of court fee on memo of such appeal, that gave rise to the question of applicability of payment of court fees. 5. Learned Advocate General of the State and learned counsel for the appellant contended that for payment of court fees on memo of appeal to be filed in the High Court, Section 4 of the Act, 1870 is applicable and thereby for writ appeals in accordance with Schedule II, Art. 11, appellant is required to pay the court fees. In case for any reason it is held that the appeal does not fall within that category, the court fees payable shall be in accordance with Schedule II, Art. 17 of the Act. 1870. 6. In case for any reason it is held that the appeal does not fall within that category, the court fees payable shall be in accordance with Schedule II, Art. 17 of the Act. 1870. 6. Schedule II Article 11 and Schedule II Article 17 reads as below : Number Proper Fee 11. Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree (a) When presented to the High Court. (b) When presented to the Civil Court other than the High Court. Fifteen rupees Ten rupees 17. Plaint or me-morandum of appeal in each of the following suits:- Sixty Rupees (i) to alter or set aside a summary decision or order of any of the Civil Courts not established by Letters Patent or any Revenue Court; (ii) to alter or cancel any entry in a register of the names of proprietors or revenue paying estates; (iii) to obtain a declaratory decree where no consequential relief is prayed; (iv) to set aside an award; (v) to set aside an adoption. (vi) every other suit where it is not possible to estimate at a money value the subject matter in dispute. and which is not otherwise provided for by this Act." 7. Learned Advocate General and learned counsel for the appellant placed their reliance on the following judgments rendered by various High Courts and the Apex Court. (1) AIR 1949 Nagpur 1 (2) AIR 1958 Kerala 338 (3) MPLJ 1960 886 (4) AIR 1976 SC 1503 (5) AIR 1978 MP 8 (6) AIR 1987 MP 190. 8. In Apparao Sheshrao Deshmukh v. Mt. Bhagubai and others Reported in AIR 1949 Nagpur 1 Hon'ble the High Court has held thus : "A memorandum of appeal filed against the rejection of a plaint under O. 7, R. 11 (c), Civil P. C., should bear ad valorem Court-fee on the difference between the court-fee paid and the court-fee demanded in the lower Court. 9. In Luka v. State of Kerala reported in AIR 1958 Kerala 338 the Court has held thus: "the Court fee payable on a memorandum of appeal filed against an order on an application under Art. 226 of the Constitution is only Rs. 2 under schedule 2 of Art. 6 of the T. C. Court-fees Act. The rule framed by the High Court requiring Rs. 2 under schedule 2 of Art. 6 of the T. C. Court-fees Act. The rule framed by the High Court requiring Rs. 25/- to be paid as court fee on such memorandum is ultra vires." From bare reading of the above judgment it is clear that there is a specific law for payment of court fees on a memorandum of appeal filed against the order on an application under Article 226 of the Constitution of India under Travancore-Cochin Court fees Act (1125), Schedule 2, Art. 6. 10. In Bherodan Agarchand and others v. Murlidhar Bijulal reported in 1960 MPLJ 886 the High Court has held thus ; "In an appeal from a mortgage suit court fees would be payable ad valorem on the subject matter of the appeal and not on the sum secured by the mortgage. The court fees payable on the memo of appeal would thus be governed by the nature of the reliefs claimed in the appeal, 1905 ILR 27 All 447, Rel. (Para 7) Where in a suit for redemption of the mortgage the dispute was not with regard to the right of redemption nor with the principal money due, but only with regard to the method of computing interest, and in his appeal from the decree of the trial Court, the plaintiff merely claimed certain alterations in the directions given to the Commissioner while passing the preliminary decree for determining the price of redemption. Held, that the relief claimed in appeal was incapable of valuation. Court-fees on the memo of appeal were payable under Article 17. Section 9 (ix) was incapable. 1938 (16) NLJ 269 : AIR 1938 Nagpur 409 (FB), Rel (Para 7). The law laid down therein only authorizes the Court to realize court-fee by considering nature of the reliefs claimed in the appeal. 11. In Diwan Brothers v. Central Bank of India, Bombay and others, AIR 1976 SC 1503 Hon'ble the Apex Court, has held thus' "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 P. C. 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 in the Act, does not make it a decree within the meaning of the Court Fees Act. The decision does not fulfil the requirements of a decree within the meaning of Schedule II, Art. 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 Sch. II, Art. 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 Procedure. 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." 12. In Shantilal Sognamal and another v. Town Improvement Trust, Ratlam and others, AIR 1978 MP 8, the Court has held thus : "In an appeal under S. 147 from a decision given under S. 78 ad valorem court-fees on the difference between the amount claimed and the amount awarded is not required to be paid; the Court-fees payable on such appeal will be under Art. 11 in Schedule 2 of the Court Fees Act." The above case arises out of an appeal under Section 147 of the M. P. Town Improvement Trust Act, 1960. The impugned order passed by the Tribunal was held not a decree, therefore, the Court was of the view that in such appeal the court-fees is to be paid in accordance with Sch. 2, Art. 11 of the Court Fees Act. 13. In Yogeshwar and others v. Laxminarayan Agrawal reported in AIR 1987 MP 190, the Court has held thus : "Letters Patent (1865), Cl. 2, Art. 11 of the Court Fees Act. 13. In Yogeshwar and others v. Laxminarayan Agrawal reported in AIR 1987 MP 190, the Court has held thus : "Letters Patent (1865), Cl. 10 - Letters Patent Appeal - Fixed or ad valorem court fees - First appeal before single Judge - Abatement of, on death of sole appellant - Belated application by legal representatives on death of sole appellant, to set aside abatement - Dismissal of as no ground to condone delay was made out - After holding that appeal abated, single Judge also passing order dismissing appeal - Such order cannot be treated as decree-Letters patent appeal against such order not being against decree, fixed court-fee is payable and not ad valorem, (Court-Fees Act (7 of 1870), S. 7, Sch.1)". The law laid down therein emerged on the facts that first appeal against judgment and decree passed by the Civil Court was instituted before single Judge of the High Court, after the death of the appellant legal representatives were not brought on record and the appeal abated. For substitution, in place of deceased and setting aside the abatement, an application was made that was rejected by the single Judge and the single Judge also passed an order of dismissal of the appeal holding the appeal abated, the order was upheld under Letters Patent Appeal. In those facts, it was held that the order passed by single Judge does not amount to decree, therefore, fixed court fees is required to be paid. 14. Except Luka v. State of Kerala (supra) none of the other case laws relates to appeals arising out of final orders passed by the learned single Judge of the High Court invoking extraordinary jurisdiction as envisaged under Article 226 of the Constitution of India. So far as law laid down in Luka v. State of Kerala is concerned, that is also not applicable in the instant case. 15. Writ Appeal introduced by Act, 2006 does not keep the Division Bench hearing the appeal in the same footing as an ordinary appellate Court in relation to subordinate Courts, truly speaking an appeal heard by Division Bench is merely a reviewing of the matter by the same Court and virtually judgment of the Division Bench is nothing, but a substitution of the judgment of the Single Judge both being the decisions of the same Court. If we explore Sch. If we explore Sch. II, Art. 11 of the Act 1870, we can find that any order passed by any Court or authority which are subject to appeal under any law, are liable for payment of court fees when presented to the High Court. 15/- and presented to Civil Court other than High Court Rs. 10/-. Each word carries a significant meaning. "Civil Court other than High Court" that itself is sufficient to state that presented to High Court, means; High Court while exercising its civil jurisdiction. So far as the word "decree" or "an order having the force of decree is concerned",it also reflects that the order must be passed by either subordinate civil Court or any Tribunal or authority who is under superintendence of the High Court, and the order must be of a civil in nature. In nutshell, so far as Schedule II, Art. 11 of the Act 1870 is concerned, that relates to Miscellaneous Civil appeals and that does notrelate to intra Courtappeal arising out of exercising jurisdiction under Art. 226 of the Constitution. Therefore, for payment of Court fees in memorandum of appeal filed in the High Court against any judgment or final order passed by a Single Judge of the High Court exercising jurisdiction under Article 226 of the Constitution, court fees cannot be realized on the strength of Schedule II, Art. 11 of the Act, 1870. 16. Schedule II, Art. 17 starts with "plaint or memorandum of appeal in each of the following suit". It is pertinent to mention that suits are instituted by presentation of plaint and after decision of the suit, they are subject to appeal in accordance with law. Therefore, Schedule II, Art. 17 is not so comprehensive which may include any judgment/final order passed by a single Judge on a petition under Art. 226 of the Constitution of India. Therefore, the appeal instituted against judgment /final order passed by a single Judge of the High Court, exercising extraordinary jurisdiction as envisaged under Art. 226 of the Constitution, does not fall within the four corners of Schedule II, Art. 17 of the Act, 1870. 17. Schedule II, Art. 1(e) (ii) of the Act, 1870 makes provision for payment of court-fees on a petition filed under Art. 226 of the Constitution of India. 17. Schedule II, Art. 1(e) (ii) of the Act, 1870 makes provision for payment of court-fees on a petition filed under Art. 226 of the Constitution of India. Therefore, when a petition for exercising extraordinary jurisdiction as envisaged under Art. 226 of the Constitution of India by a Single Judge, provisions have been specifically made and accordingly petitions are filed paying the fixed court fees. Naturally, when those judgments /orders are challenged before the High Court by way of appeals for re-consideration, virtually those appeals being also petitions for exercising powers under Art. 226 of the Constitution of India shall require payment of same court fees even otherwise considering nature of the subject matter in dispute in appeal the same court-fees is required to be paid. 18. For re-hearing by a Division Bench, nomenclature "appeal" has been applied, but in real sense the petition filed under Art. 226 of the Constitution of India, heard and decided by a single Judge has again to be reviewed by a Division Bench. Division Bench has to exercise power and jurisdiction as envisaged under Art. 226 of the Constitution of India, therefore, using nomenclature "appeal" the petition filed by way of an appeal in sum and substance is virtually a second application under Art. 226 of the Constitution of India, for re-hearing of the matter which has already been heard and decided by a single Judge. Therefore, whether the original petition under Art. 226 of the Constitution of India has been filed before the High Court for hearing by a single Judge or whether applying nomenclature "appeal" a second petition, after decision of the single Judge, has been instituted in the High Court for invoking power and jurisdiction under Art. 226 of the Constitution of India are, so far as payment of court fees is concerned, one and the same and they cannot be distinguished for payment of the court fees on different yardsticks. 19. 19. High Court of Chhattisgarh, in exercise of powers conferred under Articles 225, 227 of the Constitution of India, and Section 25 of the M. P. Reorganization Act, 2000, has framed rules for practice and procedure in the High Court and according to those rules, for writ appeals this High Court has directed to apply mutatis mutandis directions applicable in regard to first appeal and it is settled that first appeal is to be filed after paying appropriate court-fees applicable for those appeals. It is also settled that court fee payable in appeal is the value of the appeal, therefore, from that angle also as the original petition requires payment of fixed court fee of Rs. 100/- in accordance with Schedule II, Art. 1(e)(ii) of the Act, 1870 the same shall be payable in writ appeals being filed for the same relief. Hence, the court-fees of Rs. 100/- as is leviable for original petition is also leviable in writ appeals. 20. In the result, it is decided that court fee payable in appeal to Division Bench of the High Court from a judgment or a final order of single Judge of the High Court in exercise of its original jurisdiction shall be Rs. 100/- (Rupees One Hundred) in accordance with Schedule II, Art. 1 (e) (ii) of the Act, 1870 until modified by the State by appropriate legislation. Order accordingly.