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Judgment
Sharad Kumar Sharma, J.
The present Appeal has been preferred by the appellant challenging the judgment dated 28.08.2018 passed by Civil Judge (S.D.) Rudrapur, District
Udham Singh Nagar in Execution Case No. 01 of 2017 ‘Sunvoice Electronics vs. Lottee Electronics Ltd.’, which has been passed on the
appellant’s Application Paper No. 48C-1, which was preferred under Order 21 Rule 58.
As a consequence of the impugned judgment dated 28. 08.2018, the application under Order 21 Rule 58 was rejected.
On filing of the Appeal the Registry has raised the following objections to the effect that in payment of the Court fees there is a deficiency of
`2,66,175/-. On this defect by the Registry, the learned counsel for the appellant has filed his objection submitting that once there is a decision rendered
on Rule 58 of Order 21 application it will fall to be a case within the purview of Article 11(C) of the Schedule II of Court Fees Act and it will not be
treated as to be a decree on which the fee as reported was required to be paid.
After filing of the Appeal, the respondent had put in appearance through the learned counsel Mr. Vikas Kumar Guglani.
Heard learned counsel for the parties.
The argument as extended by Mr. D. Barthwal to the effect is that since the impugned judgment being a decision rendered on an application under
Order 21 Rule 58 it will not take the shape of a decree. Consequently, as per the ratio laid down by the Orissa High Court in the judgment ‘Pravat
Kumar Ghosh v. Jharana Ghosh & Others’ reported in AIR 2008 page 9 paragraph 6, the court fees would be payable as per schedule II clause
11(1). Paragraph 6 of the said judgment is quoted hereinbelow:
“6. The other question raised before the Court is as to how the Court fee is to be computed in such a case even though the appeal is to be valued
as that of the valuation of the suit. The Full Bench of the Andhra Pradesh High Court in the aforesaid decision also dealt with this question in
paragraph-39 of the judgment which is quoted below:
An examination of the provisions reveals that while Article 11 (i) specifically and directly refers to the applications filed under Order 21, Rule 58,
Section 38 is a general provision in relation to suits to set aside the attachment. It is true that an application filed under Rule 58 are to be decided in the
same manner as a suit. However, they cannot be said to be suits referred to in Section 38. The occasion to file a suit to set aside the attachment under
Section 38 would arise, if only the application filed under Sub-rule (1) of Rule 58 is not entertained and returned. It is on such suits, that the Court fee
is payable under Section 38. On the other hand, if the application is entertained, Clause 11 (i) of Section II gets straightaway attracted. Even
otherwise, it is settled principle of law that where situations are governed by a specific and a general provision, the latter has to give way. Therefore,
the court fee payable for applications filed under Rule 58 of Order 21 shall be the one provided for under Clause 11 (i) of Schedule II. Consequently,
the Court fee payable in an appeal filed against orders passed in such applications is the same as the one payable on the application, as provided for
under Section 49 of the Act. The view expressed in Biksha Reddy's case (supra) on the Court fee payable on applications filed under Rule 97 of
Order 21, holds good for that category of applications as also the appeals arising out of them.
The Court held that Clause 11(1) of Schedule II in such cases gets acts straightaway attracted and the Court fee has to be paid in terms of the
same.â€
58 There is a slight distinction as per the ratio laid down by the Orissa High Court while interpreting the impact of order 21 Rule while determining the
question on imposition of the court fees. The Orissa High Court has not dealt with the aspect as to what would be the effect of the order passed under
Order 21 Rule 58 when it takes the shape of decree whether it would still continue to be falling within the exemption clause as provided under clause
11(1) of Schedule II of the Court Fees Act.
In response to it, the learned counsel for the respondent submits that sub-rule (4) of Rule 58 of Order 21, any order rendered while deciding an
application under Order 21 Rule 58, it will take the shape of a decree as defined under Section 2(2) of the Code of Civil Procedure, and once the
judgment even if it is rendered under Order 21 Rule 58 and falls to be satisfying the condition of sub-rule (4) of Rule 58, in that eventuality, the clause-
11 of schedule II will not come into play because schedule II clause 11(2) provides the payment of the court fees as per column 2. There is an Appeal
which is not from a decree or an order having the force of decree.
Considering the impact of sub-rule (4) of Rule 58 of Order 21 the decision herein, where a challenge is given under Order 21 Rule 58, since as per
the clause 11 of schedule II, will take the shape of a decree, the court fees would be payable on the same and would be as per the stamp reporters
report given in the present Appeal.
Consequently, objection is rejected. The appellant is directed to supply the necessary court fees as pointed out by the Registry.
List this case on 04.10.2018.