Authored By : John Freeman Norris, Beverley

John Freeman Norris and Beverley, JJ.

1. The question referred to us is as to the proper Court-feeto be paid on a memorandum of appeal presented to this Court under Section 108,Clause 3 of the Bengal Tenancy Act.

2. The practice hitherto has been to treat such appeals asappeals from appellate decrees.

3. It is contended, however, that the appeal should beregarded, for the purpose of the Court-fee, as an appeal from an order, andthat a Court-fee of Rs. 2 is sufficient under Schedule II, Article 11 of theCourt-fees Act.

4. This contention is based--

(i) On the argument that the disputes referred to in Section106 of the Bengal Tenancy Act are not expressly described as suits.

(ii) On the authority of an order made by a Division Benchof this Court (Tottenham and Ghose, JJ.) on the 2nd August 1887, in which itwas held that an appeal under Section 158, Clause 3 of the same Act, must betreated as an appeal from an order, and that the memorandum of appeal from anorder under that section is subject to a Court-fee of Rs. 2 only.

5. On the first point it is to be observed that by Section106 it is provided that "in all proceedings under the last foregoingsection the Revenue Officer shall, subject to rules made by the LocalGovernment under this Act, adopt the procedure laid down in the Code of CivilProcedure for the trial of suits, and his decision in every such proceedingshall have the force of a decree." And by the rules therein referred to(Chapter VI, Rule 32), the proceeding is to be "dealt with as a suitbetween the parties under the Tenancy Act, in which the objector shall beplaintiff and the other parties defendants."

6. As regards the second contention, it is to be observedthat by Clause 3 of Section 158 "the order on any application under thissection shall have the effect of a decree," and a memorandum of appealagainst such an order is expressly excluded from the purview of Article 11,Schedule II of the Court-fees Act.

7. We are of opinion, therefore, that the practice which hasbeen hitherto observed is correct, and that the memorandum of appeal in thepresent case should bear a Court-fee of Rs. 10 under Article 17, Clause VI ofthat Schedule.

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Petu Ghorai vs. RamKhelawan Lal Bhukut (02.02.1891 - CALHC)