1990 PLP 228 (MLD)

Joydeb v. Baitulmal Karkhana Ltd. P L D 1965 S C 37 ref. (b) Punjab Finance Act (XIV of 1973) ‑‑‑Fourth Sched., Art.2, Sr.No.12 para. 3‑‑Civil Procedure Code (V of 1908), S.115‑‑Trial Court's decree affirmed in appeal‑‑Revision petition‑‑Proper court fee‑‑Trial Court's decree having been affirmed in appeal, formal adjudication of controversy would be evinced by the final decree granted by the Appellate Court i.e., decree of affirmation‑‑Proper court‑fee on revision petition would thus be governed by Fourth Schedule, Art.2, Sr. No.12, para. 3, Finance Act, 1973‑ Revision petition having not been properly stamped, objection thereto was upheld.‑‑‑[Revision (civil)‑‑Court‑fee]. Iqbal Ahmad for Petitioners. Nemo for Respondent. Date of hearing: 17th October, 1989. 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 petitioner's 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 PLD 1965 SC 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 of 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 help at all as the facts are clearly distinguishable. In 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 original decree. No such eventuality arises in the present case.

3. The contention is, therefore, rejected. The office objection is up held. A.A./B‑160/L Order accordingly.