1990 PLP 1154 (CLC)

‑‑‑‑Fourth Sched., Art.2, Sr. No.12, para. 3‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Revisional petition against decree of affirmation granted by Appellate Court‑‑‑Court‑fee payable‑‑‑Trial Court having granted decree and the same having been maintained by First Appellate Court, formal adjudication of controversy would be evidenced by the Final decree granted by Appellate Court, i.e., decree of affirmation‑‑‑Revision petition against such decree would fall under para.3, Sr. No.12, Art.2, Fourth Schedule, Court Fees Act, 1870 and not under para. 2 of that Article. Joydeb v. Baitulmal Karkhana Ltd. P L D 1965 SC 37 distinguished. Iqbal Ahmad for Petitioners. Tufail Ahmad respondent/plaintiff filed a suit for specific performance of contract against Mst. Badar‑un‑Nisa etc. the petitioners/defendants herein and succeeded in obtaining the decree prayed for on payment of Rs.58,000 as consideration. The petitioners' attempt failed in the appellate Court against the same and so the present revision petition.

2. The office has raised the objection that the revision petition is insufficiently stamped with court‑fee to the extent of Rs.4,

335. Learned counsel relies upon section 8 of the Punjab Finance Act 1973 and the dictum laid down in P L D 1965 S C 37 (Joydeb v. Baitulmal Karkhana Ltd.) to contend that the appellate Court having confirmed the decree of first Court the order of affirmation was under revision and not the decree and so it was to be stamped with court‑fee under Sr. No. 12 para 2 of Article 2 of the 4th Schedule to the Punjab Finance Act, 1973. The argument does not hold much water. Decree has been defined in subsection (2) of section 2 of the Civil Procedure Code as formal expression of an adjudication 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. The first Court having granted the decree and the same having been maintained by the appellate Court, the formal adjudication of the controversy would be evidenced by the final decree granted by the appellate Court i.e. the decree of affirmation. Hence the case would fall under paragraph 3 Sr. No. 12 Article 2 of the 4th Schedule to the Act and not paragraph

2. The case from the Supreme Court relied upon by the learned counsel does not A help at all as the facts are clearly distinguishable. 1n that case so far as the original controversy in the suit was concerned, that was settled up to the High Court and only when the question of apportionment of the compensation money for a piece of land acquired, a part of the original decree, came up for consideration and an order was passed which was challenged in the High Court, it was in that connection that it was observed by their Lordships that this latter order of apportionment did not merge in the origina decree. No such eventuality I arises in the present case.

3. The contention is, therefore, rejected. The office objection is upheld. A.A./S.678/1 Order accordingly