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Civil Revision No.46 of 1978/BWP, heard on 28th April, 1984.

---A.11 (1)--Civil Procedure Code (V of 1908), O. VII, R.11--Provisions of S. 11 (1) of Court Fees Act, 1870 not repealed by implication by provisions of O.VII, R.11, Civil Procedure Code, 1908--Section 11 of Court Fees Act would come into play after a decree was passed- Provisions of O.VII, R.11, C.P.C. however, could be invoked during continuance of proceedings prior to final disposal of a suit--Both the provisions viz. those of Court Fees Act and Civil Procedure Code were neither contradictory nor inconsistent with each other--Court Fees Act being a special law could not be deemed to have been repealed by general law i.e. Civil Procedure Code, 1908.--[Interpretation of statutes].

Annapurnabai vs. Bhanji A I R 1953 Nag. 307 and Kunjammal vs. Krishna A I R 1954 Mad. 170 ref.

---S.11 (1)--C4vi1 Procedure Code (V of 1908), O.XLVII, R.1--Review application--Postponement of preparation of decree till payment of Court-fee--Legality--Trial Court's direction to postpone preparation of decree till payment of court-fee, held, was violative of provisions of S.11(1) of Court Fees Act, 1870--Review of such conditions by Court imposed earlier was proper exercise. of jurisdiction.

---Art.5--Civil Procedure Code (V of 1908), O. XLVII, R.1--Review application--Requisite Court-fee--Review application, held, was required to be stamped with half of - Court-fee determined by Trial Court as leviable on plaint-Where review application was deficient of Court-fee, opportunity to make up same was to be afforded to defaulting part before penalising him--High Court directed petitioner to make good deficiency in court-fee by a specified date failing which same was ordered to be recovered as arrears of land revenue.

---S .115--Court Fees Act (VII of 1870) , S.11(1) Revisional jurisdiction--Decree sheet not prepared by Trial Court till payment of court-fee by .plaintiff--Such order .,being violative of provisions of S. 11 (1) of Court Fees Act, 1870, High Court directed Trial Court to prepare same--High Court, however, left undecided question of limitation for filing appeal after preparation of such decree--Revision being devoid of merit was dismissed by High Court.

Azim Ashraf for Petitioner.

Sh. Inayat Ali for Respondent.

Date of hearing: 28th April, 1984.

This civil revision is directed against the judgment of Additional District Judge, Rahim Yar Khan, dated 8-10-1877 whereby the appeal filed by the petitioners against the order dated 11-3-1976 of the Civil Judge Ist Class accepting the review application of the respondent was dismissed.

2. The facts giving rise to this petition are that in the year 1963, Khan Muhammad Khan. and Khan Zafar Ali Khan, respondents, filed a suit against Rana Muhammad Yasin, Rana Muhammad Yamin, Rana Ali Akbar and Rana Ali Asghar, petitioners, for the dissolution of partnership and rendition of accounts. Ch. Muhammad Naseem PCS, Administrative Civil Judge, Rahim Yar Khan, by his judgment dated 17-11-1971 held that the defendants-petitioners were liable to pay a sum of Rs. 8,130.22 to the plaintiff-respondents. While decreeing the suit, he noticed that the plaintiffs had paid Court-fee of Rs. 15 only against that of Rs.405, actually payable. He, therefore, directed that .i the decree shall be prepared provided the respondents pay the deficit Court-fee of Rs.390 on or before 13-12-1971 failing which their plaint shall stand rejected under Order VII, rule 11, C.P.C. On 13-3-1972 the plaintiffs-respondents submitted a review application praying that the condition imposed by the Court that the decree sheet shall be prepared on payment of deficit Court-fee by 13-12-1971 made be deleted being illegal. This application was contested by the petitioners. Learned Civil Judge Ist Class, Liaqatpur while accepting the review application held that after decreeing a suit the preparation of decree sheet cannot be postponed for non-payment of Court-fee, rather decree shall not be executed till the Court-fee is paid up as envisaged by section 11(1) of the Court Fees Act. In taking this view he relied on Annapurnabai v. Bhanji AIR 1953 Nag. 307 and Kunjammal vs. Krishna A I R 1954 Mad. 170. Dealing with the objection raised by the petitioners that the review application was barred by time, learned Court remarked,--

"the learned counsel for the respondent has very frankly admitted before me that there is no evidence on the record as to this effect."

Being aggrieved the petitioners took an appeal to the Court of District Judge who agreed with the finding of the lower Court that the review application was competent and was also within limitation dismissed the appeal. Feeling still dissatisfied petitioners filed instant revision petition.

3. I have heard the learned counsel for the petitioners as well as for :he respondents at considerable length and also perused the record.

4. It has been argued on behalf ul the petitioners that section 11 (1) of the Court Fees Act of 1870 stands repealed by implication by the provisions of Order VII, rule 11, C.P. C. of 1908 which is a subsequent legislation. The argument overlooks the fact that section 11 (1) the Court Fees Act comes into play after a decree is passed whereas the provisions of Order VII, rule 11 are invoked during the continuance of proceedings prior to the final disposal of a suit. Both the provisions are, therefore, neither contradictory nor inconsistent with each other, w; such the question of one repealing the other does not arise. Furthermore, Court Fees Act being special law cannot be deemed to been repealed by general law i.e. Civil Procedure Code.

5. As for the finding of the two Courts below that the trial Court's direction to postpone the preparation of decree till the payment of the Court-fee was violative of the provisions of section 11(1) of the Court aces Act is unexceptionable and the condition imposed in the trial Court's judgment, dated 17-11-1971 was rightly reviewed.

6. Learned counsel for the petitioners next contended that the review application in the meaning of Article 5 of the Court Fees Act was required to be stamped with a Court-fee of Rs.202.50 being half of the Court-fee determined by the trial Court as leviable on the plaint, whereas one rupee Court-fee had been affixed thereon, therefore, the application is liable to rejection. It appears that this objection was taken by the petitioners before the two Courts below but unfortunately this point has not been adverted to perhaps by oversight. I, therefore, agree with learned counsel to this extent that the review application should have been affixed with stamp valued Rs. 202.50, but at the same time I do not agree with him that the review application merits rejection at this stage on account of deficient Court-fee paid thereon. It is well-settled by now that on detecting deficiency in Court-fee an opportunity to make up the same has to be afforded to the party concerned before penalising him. In these circumstances, I have two courses open before me, that is, either to remand the case to the C Court concerned for taking steps to get the deficiency in Court-fee made up or to straight away order the respondents in the exercise of powers under section 28 of the Court Fees Act to make up the deficiency. Since the matter is sufficiently old, I choose the second course and direct the petitioners to make good the deficiency in Court-fee amounting to Rs. 201.50 by 15th of November, 1984 fairing which this amount shall be recovered as arrears of land revenue by the Collector concerned.

7. Lastly, it is argued that the learned trial Court be directed by this Court to prepare the decree sheet and the petitioners be allowed to file appeal against that decree. The petitioners on the preparation of proper decree sheet if under the law have a right to file appeal they may do so but the question whether the filing of appeal would be within tine or not cannot be examined by this Court at this stage.

8. For what has been gone above, this petition is hereby dismissed in the terms indicated above, with costs throughout.

9. Before parting with this judgment, I may express that it is regrettable that the suit which was decreed in the year 1971 is hanging fire merely for resolving technical questions, of course, to the detriment of the petitioners as the amount decreed in their favour has been considerably devalued after 13 long years.

A.A.M/115/L. Petition dismissed.

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