Jagannath Prasad vs Mulchand and Others

Aikman, J.—This is a reference by the Taxing Officer, u/s 5 of the Court Fees Act. In Execution Second Appeal No. 1143 of 1907 a Bench of this Court referred certain issues for trial by the Court below. An application was presented by the appellant in that case for a review of the interlocutory order referring these issues. The application was presented on a Court-fee stamp of Rs. 2. The official charged with the duty of checking the Court-fee reported that application was insufficiently stamped on the ground that the proper Court-fee on the application was the fee leviable on the memorandum of appeal. The Taxing Officer accepted this view, but considering the question to be one of general importance, made a reference regarding it u/s 5. It is no doubt true that the application is an application for a review of judgment and that judgment is defined as meaning the statement given by the Judge on the grounds of a decree or order. But in my opinion neither Article 4 nor Article 5 of schedule I of the Court Fees Act refers to an interlocutory order. I think it is clear from the language of these articles that they deal with judgments ending in a decree. I am of opinion, therefore, that the application was properly stamped. The learned vakil for the applicant has referred me to a case in the Bombay High Court in which a similar view was expressed by the learned Chief Justice on reference u/s 5 of the Court Fees Act. This is to be found at p. 383 of the printed judgments of the Bombay High Court for 1892. I concur with the view there taken. This is my answer to the reference.