CHACKO Vs. CATHOLIC BANK OF INDIA LTD
LAWS(KER)-1963-9-16
HIGH COURT OF KERALA
Decided on September 18,1963

CHACKO Appellant
VERSUS
CATHOLIC BANK OF INDIA LTD. Respondents


Referred Judgements :-

OFFICIAL LIQUIDATOR V. M. U. QURESHI [REFERRED TO]



Cited Judgements :-

ELSIE FELIX VS. LARSEN AND TOUBRO LIMITED [LAWS(KER)-2003-10-17] [REFERRED TO]
JAISU SHIPPING CO PVT LTD VS. OIL CORPN OIL MARKETING CORPORTION [LAWS(KER)-2001-7-14] [REFERRED TO]
C P PAUL VS. C P SUSAN [LAWS(KER)-1999-7-53] [REFERRED TO]
KUNHAMINA UMMA VS. KRISHNAN [LAWS(KER)-1978-3-41] [REFERRED TO]


JUDGEMENT

- (1.)IN A. S. No. 544 of 1961, we have held that the court fee payable on appeals from orders under the Companies Act was under Art. VI, sch. II of the T. C. Court Fees Act, 1125, corresponding to Art. XI, Sch. II of the INdian Court Fees Act. Raman Nayar, J. , in a note to the Registrar, pointed out that that ruling does not apply to appeals under the Banking Companies Act. Finding that on this appeal "under S. 45n of the Banking Companies Act, 1949", Court fee of rs. 2/- only has been paid, as if under Art. VI aforesaid, the office has made this reference.
(2.)ART. VI, Sch. II of the T. C. Court Fees Act, 1125 read thus: WI. Memorandum of Appeal, when (a) to any Civil Court, other the appeal is not from a decree than the High Court, or or an order having the force to any Revenue Court or of a decree and is presented. Executive Officer subordinate to the Government) One rupee (b) to the High Court or the the government. Two rupees. " Obviously, this ARTicle would not come into play if the order appealed against was one having the force of a decree.
In the Companies Act, 1956, S. 483 deals with appeals and S. 634 deals with the nature of the orders under the Act. "483. Appeals from any order made, or decision given, in the matter of winding up of a company by the Court shall lie to the same court to which, in the same manner in which, and subject to the same conditions under which, appeals lie from any order or decision of the Court in cases within its ordinary jurisdiction. " " "634. Any order made by a court under this act may be enforced in the same manner as a decree made by the court in a suit pending therein. "

The present appeal is filed under S. 45n of the Banking companies Act against an order under S. 451) (4), the nature of which is mentioned in S. 451) (5 ). Those Sections read thus: "45n (1 ). An appeal shall lie from any order or decision of the High Court in a civil proceeding under this Act when the amount or value of the subject-matter of the claim exceeds five thousand rupees. 45d (4 ). At the time of the settlement of any such list, the High Court shall pass an order for the payment of the amount due by each debtor and make such further orders as may be necessary in respect of the relief claimed, including reliefs against any guarantor or in respect of the realisation of any security. 45d (5 ). Every such order shall, subject to the provisions for appeal be final & binding for all purposes as between the banking company on the one hand and the person against whom the order is passed and all persons claiming through or under him on the other hand, and shall be deemed to be a decree in a suit. "

(3.)IT is clear from the above provisions that orders under the Companies Act are only enforceable in the same manner as decrees, while orders under the Banking Companies Act have to be deemed to be decrees. That is a distinction which is not immaterial. That an order is allowed to be enforced in the manner in which decrees may be enforced is only a provision as to the procedure for its enforcement. As observed by Burkitt, J. , in ILR. 17 all. 238, with the concurrence of Knox J. and Blair J. , "the mode in which an order may be enforced is not necessarily an indication or a criterion of the nature of the order. There is a great difference and no inter-connection between the force of a decree and the method of enforcing it. " His Lordship observed that "the words 'having the force of a decree' are not very intelligible"; and expressed reluctance to say that an order that might be enforced in the same manner as a decree had the force of a decree. Much the same opinion was expressed by Sale J. , with the concurrence of Marten, J. , and Khosla J. , in Official Liquidator v. M. U. Qureshi (AIR. 1945 Lahore 146) when his Lordship observed: "s. 193 (the Indian Companies Act, 1913) does not say that such orders have the force of a decree; what it says is that 'all orders made by a Court under the Act may be enforced in the same manner in which decrees of such Court made in any suit pending therein may be enforced. ' IT would seem that the distinction between 'force' and 'mode of enforcement' was not present to the minds of the learned judges, who decided L. P. A. No. 116 of 1941. . . . There is a distinction, both real and practical, and not merely artificial, as the learned A. A. G. contends, between an order that has by statute the force of a decree and an order that may by statute be enforced in the same manner as a decree. . . . Our attention has been drawn to the expression used in Cl. (2) of S. 89, Lunacy Act, 4 of 1912 (which)lays down: such order shall be enforced in the same manner, and shall be of the same force and effect. . . . as a decree. We must presume that this declaration of the force of the order, and the provisions for its enforcement are not merely redundant but mean two different things. "
In view of the distinction mentioned at the beginning of the last preceding paragraph, the rule laid down in A. S. No. 544 of 1961 cannot apply to appeals under S. 45n of the Banking Companies Act, 1949. Under the T. C. Court Fees Act, 1125 such appeals had to bear ad valorem court fees under Art. 1 Sch. I or fixed court fee under Art. VIII Sch. II of that Act.

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