# DIWAN BROS v. CENTRAL BANK OF INDIA, BOMBAY AND OTHERS - **Citation:** [1976] Supp. 1 S.C.R. 664 - **Court:** Supreme Court of India - **Decided:** 1976-05-07 - **Case number:** Civil Appc2l No. ! 370 of 1968 - **Bench:** P. N. Bragawati, A. C. Gupta, S. MURTAZA fAZAL ALI - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/diwan-bros-v-central-bank-of-india-bombay-and-others-7213 - **Pages:** 21 ## Headnote • Court Fees Act, Schedule 11, Art. 11. Displaced Persons (Debts Adjustment) Act, 1951-Tribunal's decisionlf a decree witliin tlie meaning of s. 2(2) C.P.C. Corm Fees Act. Sclicd11lc ll, Art. II-Schedule l Art. 1-App/lcabi/lty of. C Schedule 11, Article 11 of the Court Fees Act prescribes a sum of Rs. 2(. 1 • as court fees in the case of a memorandum of appeal presented to a High Court when the appeal is not from a decree or order having the force of al ~ decree. D The Tribunal appointed under the Displaced Persons (Debts Adjustment) Act 1951 dismissed the petition ftled by the appellant claiming certain SllllllS from the respondents. In appeal to the High Court from the decision of the Tnbunal, the appellants paid a nominal court fee of Rs. 5/· on the ground that the decision of the Tribunal did not amount to a decree within the meaning of s. 2(2) of the Code of Civil Procedure. TI1e taxing Judge, to whom the question of payment of court fees was referred, came to the conclusion that the appellant should pay ad valorem court fees under Schedule I, Article I of the Court Fees Act. On the question whether the decision of the Tn'llunal was a decree within E the meaning of s. 2(2) C.P.C. Allowing the appeal to this Court, HELD : The mcmornndt(m of appeal in the instant case falls v.ithln the nmbit of Schedule 11, Article II of the Court Fees Act and the view of the taxing Judge that ad •·alorcm court fees were payable under Scbedu1e I Article I was lcllllllY erroneous. [683CJ F (I) (a) In the definition of "dmee" contained ins. 2(2) of the Code of Civil G H Procedare, three essential conditions arc necessary : (i) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii). that the adjudication must be formal nnd final and must be given by a civil or revenue court. [677E-F] Under the 1951 Act, a special Tribunal was created to enquire into the claims of displaced debtors or creditors. It cannot be called a court in any sense of the term because the legislature bal made a clear distinction between a Tribunal and a court. Secondly, since proceedings before a Tribunal start with an application nnd not with a plaint, the other important ingredient of a decree is wholly wanting. Thirdly the claim beforo the Tribunal had been described as a proceeding rather than a S1lit. Therefore, none of the requirements of a decree is to be found in the decision 11iven by the Tribunal even though the legislature may have described the decision as a decree. A mere description of the decision of the Tribunal as a decree docs not make it a decree \\ithin the meaninil of the Court Fees Act. [677G-HJ (b) The term "decree" used in S:hedulc II, Article 11, is referable to a decree as defined in s. 2(2) of the Code of Ci1il Procedure. As the decision of the Tribunal in the instant cnse does not fulfil the requirement<; of a decree. • ' • • • DIWAN BROS v. CENTRAL BAJSK (Fazal Ali, 1.) 665 I lt is not a decree within the meaning of Schedule II, Article 11 of the Court Fees Act. [678D] Mannan Lal v. Mst. Chhotaka Bibi [1970] I ,;.c.c. 769; Ram Prasad v. 1'irloki Nath, AIR [1938] All. 50; Dawood Kari111 A_shrafi v. City bnprovement Board. AIR [1954] Hyd. 81; Antala Gape v. Sarbo Gopain, AIR [1962] Pat. 489; Mrs. Panzy Fernandas v. Mrs. M. F. Cu'ioros & others AIR [1963] All. 153; Dundappa v. S. G. Motor Transport Co1npany: AIR [1966] Mys. 150; lrshad Husain v. Bakshish Hussain, AIR [19·i6] Oudh 254; Harri.sh Chandra Chatteriee v. Bhoba Tarini Debi. 8 C.\V.N. 321; Taxing Officer, High Court Appellate side v. Jamnodas Dharanulas, lilt [1956] Bom. 211; Barras v. Aberdeen Steam Trawling and Fi.shin~ CJrnpany [1933] A.C. 402, 411; Parma~ nand Lokumal and others v. Khudabadi Bhaibund Cv-operati\•e Credit Bank Ltd. and others, AIR [1958] Cal. 675; Punjah Nationt the decision of the Tribunal did not amount to a decree as contemplated by s. 2(2) of the Cede of Civil Procedure 1908, ad rn!orem court fees. were not payable and the appellants were entitled to pay court fees as prescribed in Sch. II Art. 11 of the Court Fees' A!:!, The stand taken by the revenue was that as the present appeal was E F G against a decree, the case of the appellants squarely fell within the ambit of s. 4 cf the Court Fees' Act and therefore ad valorem court fees were payable under Sch. I Art. 1 of the Court Fees' Act. The matter was taken up by the Taxing Judge who went into th;: question of law raised before him and after considering some authorities, particularly those of the Allahabad High Court, agreed with the Stamp Reporter and came to the conclusion that the appellants should pay ad valorem court fees under Sch. I Art. 1 of the Court Fees' Act. The Taxing Judg~ accordingly by his order dated October 11, 1965 directed the appellants to make np the deficiency in the payment of the court fees. It was against this order that the appellants filed a petition for special leave to th;s Court which having been granted the appeal has now been placed before us for hearing. · This appeal invoh·es a short but substantial question cf law as to the interpretation, scope arid ambit of Sch. II Art. 11 of the Court Fees' Act as applicable to appeals preferred against the orders or decrees passed by the Tribunal constituted under the Act. The point is not free from diffi,ulty and there appears to be a serious dhugence of judicial opinion on the question as to· wl1ether in appeals like the present, Sch. I Art. 1 or Sch. II Art. 11 of the Coi;rt Fees' Act would apply. 11 Mr. Goyal learned counsel appearing for the appellants· raised two points · before us. In the first place he contended that as the proceedings before the Tribunal were not proceeding in a Civil Court nor was the Tribunal a Court, therefore, t11e decision cf the Tribunal • ) " ) • • • DIWAN BROS v. CENTRAL BANK (Fazal Ali, !.) ' 667 even though loosely called as a decree is not a decree as contemplated by s. 2(2) of the Code of Civil Procedure and therefore the case of the appellants clearly falls within the ambit of Sch. II Art. 11 of the Court Fees Act. It was next contended that as the Tribunal had disallowed the claim of the appellants by the order impugned before the High Court the order did not amount to any decree and, therefore, the question of payment of ad valorem court fees did not arise. In this connection it was also submitted that the Act being a beneficial statute was designed to provide a cheap and expeditious remedy to displaced persons in certain circumstances and therefore the Parliament never intended that displaced persons who had lost all that they possessed in Pakistan should be made to pay ad valorem court fees without possessing the capacity to do so. A B Mr. Dikshit appearing for the respondents sought to repel the C arguments of Mr. Goyal on two grounds: In the first place it was submitted that under the provisions of the Court Fees Act the order of the Taxing Judge was final and could not be re-opened by this Court even in special leave. Secondly, it was submitted that the Tribunal was nothing but a Civil Court and the provisions of the Act would show that the Tribunal was clothed with all the powers and incidents of a Civil Court. In these circumstances it was conD tended that any decree which was passed by the Tribunal must be presumed to be a decree of the Court and was made appealable as such under s. 40 of the Act. Therefore, it was said, Sch. II Art. 11 had absolutely no application and the view taken by the Taxing Judge was Iegally correct. In order to understand the contentions raised by the counsel for E the parties it may be necessary for us to trace the history of the Act and the circumstances in which it was passed. To begin with, following the partition of the country there was an unprecedented rush of refugees from Pakistan to India and our country immediately after becoming independent had to face the colosrnl probkm of rehabilitating the refugees or the displaced persons. i\lost of these persons had left huge assets behind in Pakistan and had come to this F country without a penuy. Others were creditors and were entitled to get their debts liquidated from the assets in this country or from the properties possessed by the Banks in this country. Soon after independence there were stray and piecemeal legislations providing for some facilities for displaced debtors and creditors but there was no uniform law to cater to their growing needs in view of the situation faced by them following the partition of our country. In these G circumstances, therefore, the Government decided to bring out ·a uniform legislation so as to be a complete coae in itself providing for a cheap and expeditious remedy for displaced debtors and creditors. The matter was first entrusted to a Committee and then to Bind Basni Prasad, a retired Judge of the Allahabad Hi~h Court, who after. t'.lking evidence of a large number of displaced persons and exammmg the nature of the claims, submitted a report which H formed the basis of the Displaced Persons (Debts Adjustment) Act. Introducing the Bill which preceded the Act, Mr. A. P. Jain, the then Minister of State for Rehabilitation, made a long speech in A B c D E F G H 668 SUPREME COURT REPORTS (1976] SUPPLEMENTARY Parliament dwellin,g on the various aspects of the Bill. The Minister particularly highlighted the fact that the condition of the displaced persons was pitiable as they had left huge assets behind in Pakistan. In this connection the Minister observed thus : "The condition of the displaced persons therefore today is that while their assets have been left behind in Pakistan and they have brought the titles of their property, at least in some cases. In the provisions contained in this Bill, we have tried to strike a balance between the reduced capacity of the debtor to meet his obligations and at the same time we have taken sufficient care to see that a debtor who is in a position to pay may not deny payment to his creditor. In this Bill, we have introduced what might be called a somewhat revolutionary principle, namely, that no debtor will be called upon to pay more than his paying capacity. I shall later on define what the words 'paying capacity' mean, but here it may be enough to mention that paying capacity of a debtor has been defined in a rather liberal manner after allowing fairly large assets which will not be capable of attachment. Clause 1 J deals with claims by displaced creditors against pcrsom who are not displaced debtors, That is not comparatively so important because it only gives relief in respect of court fees. We felt that under the depressed economic condition of the displaced creditors, it is necessary that we must give them some relief against the huge amount of mo:lcy which they have to pay as court fees etc. I submit tliat these are all very necessary and huniane considerations which take into account the actual paying capacity of the debtor. We have n'aintained the existing procedure in the Courts but we have simplified it because a prolonged procedure and the complexities of the civil courts mean a Jot of money. We have provided only one appeal in clause 40." A perusal of the above observations will give a clear insight into the various objects of the Act and the main purposes which the legislation sought to achieve. It will be noticed that the Minister laid particular stress on the paying capacity of ~the debtors which he called a humane consideration and also described the necessity of giving relief to the displaced persons against the huge amount of money which they may have to pay as co_urt fees. Thus it would appear that the intention of Parliament was to bring out a legislation which would provide for a cheap and expeditious remedy to the displaced persons and entrust the work to a Tribunal which may • ) ; • DIWAN BROS v. CENTRAL BANK (Fazal Ali, J.) 669 be able to decide the claims quickly instead of leaving the displaced A debtors or creditors to follow the dilatory and cumbersome process of the civil courts. In order to shorten the litigation the Mlllister expressly stated that only one appeal had been provided in s. 40 of the Act, to the High Court. These matters will have a very_ important bearing on the interpretation of the provis.ions of the Court Fees Act as applicable to the decrees passed by a . Tribunal under the B rj • Act. Eveu apart from these considerations, it is well settled that in case of a fiscal statute the provisions must be strictly interpreted giving every benefit of doubt to the subject aud lightening as far as possible the burden of court fees on the litigant. Thus where an ~~ adjudication given by a Tribunal conld fall within two provisions of the Court Fees Act, one of which was onerous for the litigant and the other more liberal, the Court would apply that provision which was beneficial to the litigant. In A. V. Fernandez v. State of c Kera la('), while interpreting the provisions of a fiscal statute, viz., the Travancore-Cochin General Sales Tax Act, this Court observed ' as follows: "It is no doubt true that in construing fiscal statutes and in detennining the liability of a subject to tax one must have D regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the .. other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the E intentions of the legislature and by con~idering what was the substance of the matter." Similarly in State of Maharashtra v. Mishri Lal Tara Chand Lodha and others,( 2) while interpreting some of the provisions of the Bombay Court Fees Act, Raghubar Dayal, J., speaking for the Court observed a' foJ]ow : F "The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the snbject-litigant." These observations manifestly show that the Courts have to interG pret the provisi~ns of a fiscal ~ta!ute strictly. so as to give benefit of • doubt to the hhgant. The prmc1ples deducible from the decisions referred to above are well established and admit of no doubt. We, therefore, ,PT?pose to d~cide the question raised before us in the light of the pnnc1ples enunciated above, but before doing that it may be necessary to give a brief survey of the scheme and structure of the l" Act in order to find out the real nature, scope and ambit of the statute. H --------- SOJ [1957] S.C.R. 8J7. (2)' !1964] 5 S.C.R. 230, 46-83JSupCl/76 670 SUPREME COURT REPORTS [1976] SUPPLEMENTARY A To begin with, it may be necessary to extract the relevant portion of the statement of objects and reasons of the statute : . B c D E F G H "The Bill is designed mainly to give relief to displaced debtors in respect" of liabilities incurred by them prior to their displacement from West Pakistan though remission of court fees has also been allowed to displaced creditors. A certain amount of relief was afforc!ed to them by Acts XL VII of 1948 and XXV of 1949, but this was found to be inadequate. A thorough examination of the various problems involvecj had to be made with a view to affording displaced persons adequate and, at the same time, reasonable relief in the matter of their indebtedness, consistently with the needs of their rehabilitation. x x x A decree under tflie law will thus consist of two parts, the first part being equivalent to and recoverable from the 'paying capacity' of the debtor, and the second part being equivalent to the balance of the total amount decreed and recoverable from the compensation, if and when received by the debtor. The first part of the decree will, as a rule, be recoverable in instalments. In respect of the second part of the decree, it has been accepted that the amount gayable should be scaled down in the proportion in which the displaced debtor is able to obtain recompense in respect of his immovable property left behind in West Pakistan. Where no recompense is received, there will be no recovery \Jf the second part of the decree." Section 4 of the Act provides for constitution of Tribunals to exercise jurisdiction under the Act and empowers the State Government to designate any civil court or class of civil couns as the Ttibunal or Tribunals and may also define the areas in which such Tribunal shall exercise jurisdiction. It may be pertinent to note !:ere that the statute deliberately does not entrust the functions of the Act to the civil conrt per se bnt to a Tribunal to be selected from amongst civil courts. Section 5 of the Act provides for an application to be given by a displaced debtor for adjustment of his debts and gives the requirements of that application. Section 6 authorises the Tribunal to reject the application under s. 5, if it does not fnlfil the requirements of s. 5 and fnrlher gives it the power to grant time to comply with the requirements. Sections 7 and 8 of the Act provide for issue of notices to the respondents and give right to the respondents to file their objections. Section 9 p1ovides for an inquiry into the application made under s. 5. The statute designedly uses the word "proceeding" in s. 9 rather than a suit which clearly shows that the Legislature was aware of the distinction between a "proceeding" und a "suit". Sub-section (2) of s. 9 authorises the Tribunal to decide the dispute and pass such decree in relation thereto as it thinks fit. It i,, therefore, clear that the decree which the Tribunal passes is not a decree of the Civil Court but a decree passed by a Tribunal in a proceeding under s. 5 and section 9 of the Act. Section 10 deals with claims by the creditors against • •• • • DIWAN BROS v. CENTRAL BANK (Fazal Ali,].) 671 ·displaced debtors and s. 11 regulates the procedum of a petition filed A ~ by .the creditor. .sub-sectioi:i (2) of s. 11 further au~horises the Tribunal to determme the claim and pass a decree m relat10n thereto. :Section 12 provides for objection by creditor to schedule of assets and s. 13 refers to claims by displaced creditors against persons who are not displaced debtors. Section 14 prescribes the procedure for displaced creditor's petition filed under s. 13 of the Act and anthonses B the Tribunal to pass a decree as it thinks fit. Sub-section (3) of s. 14 authorities the Tribunal to pass a decree if no cause is shown or if no dispute exists. A perusal of sub-ss. (2) !?' (3) of_s. 14 clearly.sh?ws that the statute contemplates a decree which may be one of reiec!Ion ~" Qf the claim put forward by the displaced creditor or one whic~ ari:iounts to allowing the claim. Thus, in other words, whether claim 1s c11sallowed or allowed, the order passed by the Tribunal would be a c decree in both cases. We have purposely mentioned this fact because some of the High Courts have taken the view that where the Tribunal 3rejects the claim of a displaced creditor or debtor either on the ground "" that the petitioner is not a displaced debtor or creditor but not on merits, such an adjudication does not amount to a decree. This distinction sought to be made by some of the Courts does not appear to ~ be consistent with the scheme and language of the statute. Section 15 D of the Act deals with the consequences of application by displaced debtor. The next relevant provision is s. 18 which regulates the procedure for claims against insurance companies, and sub-s. (2) of this section provides for a decree to be passed by a Tribunal. Section 23 provides for a simplified procedure in certain cases where the claim .. is below Rs. 5,000/- in_which case the Tribunal 1s empowered to record only a memorandum of the substance of I.he deposition of the witnesses E so as to give a short and summary decision. Section 27 refers to the ~- contents of the decree and s. 28 provides for the forum and the Court in which the decree passed by the Tribunal is to be executed. Section 32 of the Act provides the procedure for scaling down of debts by a displaced debtor. Section 36 provides for extension of period of limitation. Section 40 is the provision for appeals against any decree or final order of the Tribunal or against any order passed in the course F of execution. These are the relevant provisions of the Act in so far as the facts of the present case are concerned. A close examination and a detailed analysis of the various provisions of the Act would clearly reveal that the Act is a beneficial statute meant for advandng ... the cause of the displaced debtors and creditors by conferring substantia! benefits on them if they are able to prove their claims. Tn these circumstances it is clear to us that the Legislature :ould nevet have intended that the claimants should have to pay heavy court fees either G . ' in getting their claims adjudicated by the Tribunal or even in filing appeals against the decrees of the TribunaJ.s. That the displaced persons liod been given such concessions and facilities has been held by this Court in Shri Ram Narain v. The Simla Banking & Industrial Company Ltd.(') where this Court observed as follows : "- "Now, the Displaced Persons (Debts Adjustment) Act is one of the statutory measures meant for relief and rehabiliH ---------- (I) [1956] S.C.R. 603. A B c D E F G H 672 SUPREME COURT REPORTS (1976] SUPPLEMENTARY tation of displaced persons. It is meant for a temporary situation brought about by unprecedented circumstances. It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important natioi1al purpose. It is by and large a measure for the rehabilitation of displaced debtors. x x x There is 'ito provision therein which com;ids either a displaced debtor or a displaced creditor to go to the Tribunal, if he is satisfied with the reliefs which an ordinary civil court can give him in fos_ normal course. It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal's jurisdiction comes into operation. x x x It is also desirable to notice that so far as a claim of a displaced creditor against a non-displaced debtor is concerned the main facilities that seem to be available are ( 1) the claim cah be pursued within one year after the commencement of the Act (presumably even though it may have been time barred), (2) a decree can be obtained on a mere application, i.e. without having to incur the necessary expenses by way of court-fee which would be payable if he 'had to file a suit, ( 3) the creditor has the facility of getting his claim adjudicated upon by a Tribunal which has jurisdiction over the place where he resides, i.e., a place more convenient to him than if he had to file a suit under the ordinary law in which cas(). he would have to file a 'uit at the place where the defendant resides or part o( the cause of action arises. There may also be a few other minor facilities." As pointed out above, the claim of the appellants in the present case before us was dismissed by the Tribunal on merits and the stand taken by the Revenue which found favour with the Taxing Judge of the High Court was that the appellants should pay ad valorem courtfees as their claim was rejected •Jn merits. Counsel for the appellants has submitted that the present appeal would be governed clearly by Sch. II Art. 11 of the Court Fees Act, This Article re11.ds thus : "11. Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and ;,; presented. (a) x x x (b) to a High Court or Chief Commissioner,. or other Chief Controlling Executive or Revenue Authority. Two rupees" In order to attract application of this article, the following conditions must be fulfilled ; i • .. DIWAN BROS v. CENTRAL BANK (Fazal Ali, 1.) 6 73 li) that the document sought to be stamped must be a A memorandum of appeal; (ii) that the appeal should be presented to the High Court; and lili) that the appeal should not be from a decree or an order having the force of a decree . Tbe third condition of the article is couched in a negative form thus implying that this provision would have no application to appeals against deC'rees. The question that falfa for determination is as to whether or not_the decision given by the Tribunal under the Act could be said to be a decree within the meaning of Sch. II Art. 11 of the Court Fees Act. It was submitted by learned counsel for the appellants that the Court Fees Act and the Code of Civil Procedure being statutes complementary to each other should be read as one harmonious whole. We think that the contention is well founded and must prevail. The term "decree" as used in the Court Fees Act is a term of art and it must be deemed to have been used in the same sense as understood by the Code oCCivil Procedure. It may be pertinent to note here that neither the Court Fees Act nor the Displaced Persons (Debts Adjustment) Act has defined the tel1)1 "decree". Nevertheless, as far back as 1859, by Act No. VIII of 1859 passed by the Governor-General in Council the concept of a decree was clearly indicated, although no definition of a decree was given in that Act. By ss. 183 to 190 the manner in which the judgments were to be given and the decrees were to be prepared as also the contents of the same were clearly mentioned. Section 189 which expressly dealt with decrees ran thus ; "The decree shall bear date, the day on which the judgment was passed. It shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, as stated in the Register of the suit, and shall specify clearly the relief granted or other determination of the suit It shall a1so state the amount of costs incurred in the ~\lit and by what parties and in what proportiorn they are to l:>ii paid, and shall be signed by the Judge, and sealed with ~ea! of the Court." · Thns when the Court Fees Act was passed in the year 1870 and used the term "decre.e" it must be intended to have used the word "decree" ~o as to bear the same connotation a~ the word "decree" as explained m s. 189 of Act VIII of 1859. In the Code of Civil Procedure Act XIV of 1882 "decree" appears to have bi:;en defined for the first time and the definition may be extracted as follows . "'decree' means the formal expression of an adjudication upon any right claimed, or defence set up in a Civil Court ~hen ~uch adjudi<;:ation so far as regards the Court expressing 1t, d~c1d~s the smt or, appeal. An order ~ejecting a plaint, or drrectmg accounts to be taken, or determmmg any question B c D E F G H 6 7 4 SUPREME COURT REPORTS [1976] SUPPLEMENTARY A mentioned or referred to in .;ection 244, but not specified in section 588, is within this definition : an order specified in section 588 is not within this definition : " B c D E F G H The Code of Civil Procedure of 1908 also gave a full and complete: definition of "decree" in s. 2 (2) which rnns thus : "'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively detenriines the rights of the parties with regard to all or any of -the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include-- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default." It would be seen that an order rejecting a plaint was clearly mentkmed as falling under the term "decree". In view of this clear defini-· tion of the order rejecting a plaint, it becam; necessary to make a corresponding change in Sch. II Art. 1 ! 0f thJ Court Fees Act and by Act V of 1908 the words "from an order rejecting a plaint or" used in Sc':t. II Art. 11 before 1908 were expressly omitted for the simple reason that an order rejecting a plaint having been incorporated in the definition Q.f a "decree" it was not necessary to retain it in the Court Fees Act. This is the most important intrinsic evidence to show that the Legislature in enacting the Court Fees Act used the term "decree" in the same sense as it was used in s. 2(2) of the Code of Civil Procedure, 1908 or in the code obtaining before that day. This also shows that the Court Fees Act and the Code of Civil Procedure are more or less complementary to each other. This matter was the subject-matter of a decision of this Court in Manrum Lal v. Mst. Chhota/..a Bibi('), where this Court observed as follows : "In our view in considering the question as to the maintainability of an appeal when the court-fee pakl was insufficient to start with but the d~ficiency is made good later on, the provisions of the Court Fees Act and the Code of Civil Procedure have to be read together to form a hannonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the ei "The word 'decree' has not been defined in the Courtfees Act or in the Genetal Clauses Act; and it is safe to assume that the word has been used in the Court-fees Act in the sense in which it is used in the Civil P.C., under which all the decrees are passed and which defines it as meaning "the formal expression of adjudicr1tion which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. ........ " A Full Be11ch of the Hyderabad High Court in Dawood Karim Ashrafi v. City Improvement Board( 2 ) made a similar observation where the Court observed as· follows : "To have the force of a di:cree, an order must possess all the characteristics of a decree. It was further held that the word "decree" has not been defined in the Court-fees Act or in the General Clauses Act, and it was safe to assume that the word has been used in the Court-fees Act in the sense in which it is used in the Civil Procedur~ Code." A Division Bench of the Patna High Court also in Anta/a Gope v. Sarbo Gopain( 3), while interpreting the word 'decree' used in the Hindu Marriage Act, appears to have taken the same view and observed as follows : "The Act provides under section 21 that "all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908"; B c D E that is to say, the procedure to be adopted by the Court, iu F dealiug with such proceedings will be akin to that provided for the trial of suits in a Civil Court. But that does not make the proceeding a suit or the application a plaint. x x x x x x Therefore, in qur view, article 11 of Schedule II of the Court Fees Act will be applicable to all appeals coming under section 28 of the Hindu Marriage Act, !955." The later Full Bench decision of the Allahabad High Court in Mrs. Panzy Fernandas v. Mrs. M. F. Cusoros & others(•) appears to have endorsed its previous view and observed as follows (I) A.LR. 1938 All. 50. (2) A .. I.R.1954 Hyd. 81. (3) A.LR. 1962 Pat. 489. (4) A.LR: 1963 All. 153. G H A B c D E 676 SUPREME COURT REPORTS [1976] SUPPLEMENTARY "The same result would, however, follow from a persual of the various provisions of the Code of Ovil Procedure of 1859, as it stood in the year 1870. The above provision of law, therefore, indicates that under the Code of Ovil Procedure, 1859, a decree could only be passed in a proceeding which could be termed a suit. Section 26 specified the particulars that are to be given in the plaint. Section 27 laid down the manner in which the plaint was to be subscribed and verified. Thu5 the scheme of the Code of Ovil Procedure of: 1859 as disclosed by the aformentioned provisions, also points to the conclusion that a decree marks the culmination of a proceeding which is described as a suit, and which, according to the said Code, is initiated by means of a plaint. Proceeding~ for letters of administration under the Indian Succession Act (Act XXXIX of 1925) are not commenced by the institution of a plaint. On the other hand, as section 278 of the said Act shows, they are commenced by an "application" or a petition. For the above - reasons we are of opinion that the decision of a Court in proceedings for letters of administration carmot be described as a decree. If executability was to be the invariable quality of all decrees, one wonld expect that the Legislature would incorporate this feature in the provisions which define the nature, scope and contents of a decree. Further, if the Legislature wanted that Schedule II Article 11 should apply only to executable orders it could very easily have added the word "executable. before -i'order"." In the above case the order passed in a proceeding before a Probate Court was held not to be a decree. In Dundappa v.S. G. Motor Transport Company(') the High Court of Mysore observed as follows : "Jn order to understand the expression "having the force of a decree" occurring in this article of the Court Fees Act, it would be usefnl to derive guidance from the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, according to the provisions of which, a decree G is a formal expression of an adjudication conclusively determining the rights of the parties with regard to _all or any of the matters in controversy before the Court." H In Irshad Husain v. Bakhshish Husain(') the same view was taken by the Oudh High Court where the Court observed as follows : "The expression "decree" is not defined either in the Court-Fees Act or in the General Clauses Act. It may, -·------- (1) AIR 1966 Mys 150. (2) AIR 1946 Oudh 25.4 f • .1 • DIWAN BROS v. CENTRAL BANK (Fazal Ali, J.) 6 77 therefore, be safely assumed that this expression as used in A Sch. 2, Art. 11, Court-Fees Act, bears the meaning given to it bys. 2(2) Civil P.C. Nor can it be disputed that there is a vita! difference between a "decree" and an "order" in matters relating to appeals." In Barrish Chandra Chatterji v. Bhoba Tarim Debi(') the Calcutta High Court also appears to have taken the same view, where B the Court observed as follows : · "I do not think this was the "formal expression of an adjudication" so as to make the order a decree within the meaning of sec. 2 of the Code of Civil Procedure. The fee payable, therefore, will be one leviable under Art. 11 of the second schedule of the Court-fees Act." C The Bombay High Court in Taxing Officer, High Court, Appellate side v. lamnadas Dharamdas,(2) which was a case under the Displaced Persons (Debts. Adjustment) Act, ha> clearly held that the term "decree" used in Sch. II Art.