DESAI,C.J. - (1.) JUDGEMENT This is an application purporting to be under O. 44 R. 1 C.P.C. for permission to file in forma pauperis a Special Appeal from a judgment of a Judge of this Court in a First Appeal from a decree passed by a Civil Judge in a suit for arrears of maintenance allowance and recovery of moveables. Order 44 R.1 lays down that a person entitled to prefer an appeal, who is unable to pay the court fee required on the memorandum of appeal, may present an application accompanied by a memorandum of appeal and may be allowed to appeal as a pauper. If a Special Appeal is governed by O. 44 the applicant is entitled to be allowed to appeal as a pauper and the sole question is whether it is governed by O. 44 R. 1 or not. The Special Appeal itself is not an appeal governed by the Code of Civil Procedure as the Code does not provide for Special Appeals at all. It is an appeal filed under the Letters Patent and Rules of Court. Section 117 C.P.C. lays down that "Save as provided in this part or in part X or in rules, the provisions of this Code shall apply to such High Courts". There is nothing in it regarding the applicability or non-applicability of O. 44 to Special Appeals. Part X deals with rules and contains Ss. 121 to 131, S. 121 provides that the rules in the first Schedule of the Code which contains O. 44, shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of other rules in Part X. Section 122 provides that a High Court may make rules regulating its own procedure and may by such rules annul or alter or add to all or any of the rules in the first schedule. Thus a High Court has the power to make a rule annulling or altering or adding to any of the rules in O. 44. The effect of the provisions of Ss. 117 and 122 is that O. 44 will apply to a Special Appeal unless there is anything in the rules contained in the schedule to the Code or any other rules made by the High Court annulling or altering it so as to make it not applicable.
(2.) IT may be conceded that there is nothing in O. 44 or in any other rule contained in the schedule making R. 1 of O. 44 not applicable to a Special Appeal but there is R. 10(2) in Chapter 9 of Rules of Court made by this Court laying down that. "in a Special Appeal from the judgment of one Judge passed in the exercise of appellate jurisdiction, the memorandum of appeal, duly stamped, shall be presented within sixty days from the date of judgment." If this rule means that every Special Appeal must be stamped with court fee it is a rule annulling or altering O. 44 R. 1 in its application to a Special Appeal. The provision that a Special Appeal must be duly stamped is a positive and emphatic statement requiring every Special Appeal to be stamped regardless of other provisions under which it may not be required to be stamped. This Court had the power to make such a provision. The word "shall" used in the rule makes the duly stamping of a Special Appeal a mandatory provision. There is a clear conflict between this provision and that contained in O. 44 R. 1 and it must be held that it is a provision, subject to which the provisions of the Code will apply to Special Appeals. In the face of this provision O. 44 R. 1 laying down that a person may bepermitted to file an appeal as a pauper cannot be applied to a Special Appeal. It is not open to us to treat the words "duly stamped" occurring in R. 10(2) of the Rules of Court as redundant or without any content or as not adding to anything already contained in S. 4 of the Court Fees Act. Section 4 of the Court-fees Act requires a memorandum of appeal including a memorandum of Special Appeal (but excluding that of a Special Appeal from a judgment passed by a Single Judge in the exercise of the ordinary original civil jurisdiction of the Court) to be stamped. Memoranda of certain appeals including Special Appeals must be stamped and must be rejected if they are not stamped under S. 4. Under this provision First Appeals from judgments of subordinate courts also must be stamped and must be rejected if they are not. Order 44 R.1, however, allows memoranda of First. Appeals by paupers to be filed without being stamped at all. Section 4 of the C.P.C. provides that in the absence of any specific provision to the contrary nothing in the Code will limit or otherwise affect any special or local law in force at the time of its enactment.
(3.) THE Court-fees Act was in force at the time of its enactment and though S. 4 required every memorandum of Special Appeal (excluding a memorandum of a Special Appeal from a judgment of a single Judge in the exercise of the ordinary original civil jurisdiction) to be stamped but the provisions in O. 44 R. 1 that an appellant may be allowed to file an appeal without paying any court fee on the memorandum of appeal is a specific provision to the contrary and, therefore, it will supersede the provision in S. 4 of the Court Fees Act. So in every case governed by O. 44 R. 1, memorandum of appeal may be presented without being stamped notwithstanding the provisions of S. 4 of the Court-fees Act. The position of an appeal not governed by O. 44 R. 1 is different; in that case there is no provision in the Code contrary to that contained in S. 4 of the Court Fees Act and, therefore, S. 4 of the Court fees Act will prevail. We have found that O. 44 R. 1 does not apply to certain Special Appeals such as the one before us. In respect of them there is no specific provision to the contrary within the meaning of S. 4 of the Code and, therefore, S. 4 of the Court Fees Act will prevail and court fee must be paid on each memorandum of appeal.;