R.N.Gurtu, J. - (1.) The short question before me is whether on the memorandum of appeal filed in this court under the provisions of Ch. VIII, R. 5 of the Rules of the Court, court fee is payable under Schedule I, Item No. 1 of the Court Fees Act or Sch. II, Item no. 11 of the same Act. Learned counsel Mr. A. P. Pandey has invited my attention to the language of R. 5 of Ch. VIII of the aforesaid Rules of Court, which in its relevant part runs as follows:- "An appeal shall lie to the court from the judgment of one judge." and has contended that an appeal preferred under R. 5 is from a judgment and not from a decree. He therefore contends that court fee is payable under Sch. II, Item 11 of the Court Fees Act, which may now be quoted:- JUDGEMENT_34_LAWS(ALL)3_1961.html
(2.) Under Sch. I Item Number of the Court Fees Act, court fee ad valorem is payable, inter alia, on memoranda of appeals presented to any Civil court except those for which special provision has been made in the Act. Learned counsel contends that Sch. I, Item No. 1 of the Court Fees Act applies only to appeals filed, inter alia from decrees, and he contends that an appeal under Ch. VIII, R- 5 of the Rules of the Court is not an appeal from a decree but only from a judgment.
(3.) The language of Ch. VIII, R. 5 of the Rules of the Court follows the language of the Letters patent, 1866, which was applicable to this Court. And when in consequence of the repeal of our Letters patent by the U. P. Amalgamation of High Court Order it became necessary to enact R. 5 so as to make a provision similar to that of Cl. 10 of the repealed Letters Patent the same language was re-employed.;