N.U. Beg, J. - (1.) This is an application under Article 133 (i) (c) of the Constitution of India. The applicant in this application is the Chief Ins pector of Stamps, U. P., Allahabad. The opposite party is Mrs. Panzy Fernan das, widow of one Sri H. Johnson, who died on the 19th November, 1958. After his death his sister and brother gave a petition under Section 278 of the Indian Succession Act (Act XXXIX of 1925) praying for the grant of letters of Admi nistration in their favour. This petition was contested by his widow Mrs. Panzy Fernandas. The District Judge of Lucknow by his order dated the 7th November, 1959, allowed the petition. Dissatisfied with the said order the widow of the deceased, namely Mrs. Panzy Fernandas, filed an appeal under Section 299 of the Indian Succession Act in the High Court. This is F. A. F. O. No. 57 of 1962. The memorandum of appeal was presented in the office for preliminary endorsements on the 21st December, 1959. On the same date the Stamp Reporter of the High Court made a report regarding the deficiency of court-fee, and the Counsel for the appellant appended a note contesting the correctness of the office report. On the 25th January, 1960, this memorandum of appeal was presented before Uniyal, J. who ordered that this matter should be put up before the Taxing Officer for report. On the 25th July, 1961, the Taxing Officer passed an order stating that, in view of the conflict of decisions on the point, the case may be laid before the Taxing Judge, Nigam, J. The case came up before the Taxing Judge, Nigam, J. on the 4th September, 1961, when he ordered that it should be referred to a Division Bench. On the 7th December, 1961, a Division Bench of this Court consisting of Nigam and Misra, JJ. reierred the question of court-fee arising in the case for the opinion of a larger Bench. Accordingly the question of court-fee came up for hearing before a Full Bench of which I was a member. On the I2th October, 1962, the Full Bench delivered its judgment holding that in its opinion the court-fee paid was sufficient. Thereafter on the 10th January, 1963, the Chief Inspector of Stamps, U. P., filed the present application praying for a certificate of fitness under Article 133 (i) (c) of the Constitution of India.
(2.) On the date of hearing, the learned Counsel for the opposite parties contested the application, and argued that it was not maintainable on the following grounds : (1) That no final judgment, decree or order has been passed in the Civil proceedings (F. A. F. O. No. 57 of 1962). Cases on this point will be discussed by me in detail in the subsequent portion of my judgment. (2) That the appeal itself was a single Judge ease, and only one point arising out of it viz., the question of Court-fee was referred to a larger Bench for obtaining its opinion thereon. The opinion given by the Full Bench will go back to the Stogie Judge for implementation of the same. Hence the order passed was merely of an advisory nature. (Vide Tata Iron and Steel Co., Ltd. v. Chief Revenue Authority of Bombay, AIR 1923 PC 148, and Premchand Satramdas v. State of Bihar, 1950 SCR 799) : (AIR 1951 SC 14). (3) If the Court-fee matter is viewed independently of F. A. F. O. No. 57 of 1962, then it cannot be said that the order passed in the said matter is an order in a civil proceeding. (Vide Tobacco Manufacturers (India) Ltd. v. State, AIR 1951 Pat 29 (FB) Krishnaswami v. Conncil of the Institute of Chartered Accountants of India, AIR 1953 Mad 79; M/s. Sriram Gulabdas v. Board of Revenue (M. P.) Nagpur, AIR 1954 Nag 1 (FB), Alien Berry and Co., Ltd. v. Income-tax Officer, Patna, (S) AIR 1956 Pat 175, V.V. Giri v. Dippala Suri Dora, AIR 1958 Andh Pra 642, Brij Lal Suri v. State of Uttar Pradesh, AIR 1958 All 621, Kehar Singh Nihal Singh v. Custodian General, Evacuee Property, AIR 1959 Punj 58 and Income-tax Officer v. Joti Prasad Agarwal, AIR 1960 All 84). (4) That the applicant, the Chief Inspector of Stamps, was at no stage a party to the proceedings, the question relating to Court-fee was raised on a report made by the Stamp Reporter of the High Court and subsequently by the Taxing Officer of the High Court. Notice was merely issued to the Standing Counsel according to the practice of the Court. That, however, did not result in making the Chief Inspector of Stamps, U. P. a party to the proceedings.
(3.) So far as the first point urged by the learned Counsel is concerned, he invited our attention to the opening words of Article 133 (i) of the Constitution of India, according to which an appeal lies to the Supreme Court only "from any judgment, decree or final order in a civil proceeding". It will have to be conceded in the present case that no decree has been passed- by the Full Bench. The Full Bench has merely expressed its opinion on a preliminary point relating to the appeal. The appeal was a single Judge appeal and will have to go back to a single Judge for hearing and disposal on merits.;