DIWAN BROS. versus CENTRAL BANK OF INDIA, BOMBAY AND OTHERS

Citation: [1976] SUPP. 1 S.C.R. 664 · Decided: 07-05-1976 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
DIWAN BROS. 
v. 
CENTRAL BANK OF INDIA, BOMBAY AND OTHERS 
May 7, 1976 
B 
(P. N. BRAGAWATI, A. C. GUPTA AND S. MURTAZA fAZAL ALI, JJ,J 
• 
Court Fees Act, Schedule 11, Art. 11. 
Displaced Persons (Debts Adjustment) Act, 1951-Tribunal's decision-
lf 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 require-
ments 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<l Bank Ltd. v. Ffrm fsardas 
Kaluram AIR [1957] Raj. 146; The Puniab National Bank Ltd. v. The American 
Insurance Company Ltd. ILR [1958] 8 Raj. 216 and S. Solian Singh v. Li~·erpool 
and London and Globe Insurance Co. Ltd. AIR [1956] Pb. 153, referred to. 
Farnunzand Lokun1al and others v. Khudabodi Bhaibund Co-operative Credit 
Bank Ltd. and others, AIR [1958] Cal. 675; Punjab National Bank Ltd. v. 
Firni lsardas Ka

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