In Re Shanmugam Alias Muthu Karuppan v.

(Prayer: Appeal (disposed of on 9-4-1945) against order sought to be preferred to the High Court against the order of the Court of the Subordinate Judge, Madura, dated 24-10-44 and made in E.A. No. 106 of 1944 in O.S. No. 139 of 1926.)

The question is whether the appellant is entitled to file a civil miscellaneous appeal and pay Court-fee accordingly or whether he must file a regular appeal and pay an ad valorem Court-fee. The order made by the Subordinate Judge against which it is now sought to appeal was made on an application by an assignee decree-holder for recognition of the assignment in his favour, and for passing a personal decree; and the application was stated to be made under O. 21, R. 16 and O. 34, R. 6 of the Code of Civil Procedure. The order of the Principal Subordinate Judge was that a personal decree was granted for the amount claimed personally against the first defendant and against the joint family properties of defendants 1 and 2. In his appeal petition, the appellant attacks not only the assignment of the decree but the personal decree itself. It was held by the Allahabad High Court in Mohamed Iltifat Husain v. Alim Unnisssa Bibi (40 All. 553) that an order on an application for a decree under O. 34, R. 6 of the Code of Civil Procedure is a decree as that term is defined in the Code and that therefore an appeal from such an order must bear an ad valorem Court-fee stamp. This decision, to the best of my knowledge, has always been followed in practice in this Court. It is not necessary to decide what would be the position if the appellant had confined his appeal grounds to an attack on the assignment of the decree. As already stated, he attacks the personal decree itself and, that being so, he cannot be permitted to file a civil miscellaneous appeal and pay the lesser Court-fee merely because in one application orders were prayed for an assignment of the decree under O. 21, R. 16 and for a personal decree under O. 34, R.

6. The view taken by the office is correct and ad valorem Court-fee as for a regular appeal must be paid. Two weeks time is allowed for payment of Court-fee.