1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk CHAMBER SUMMONS NO. 606 OF 2007 IN APPEAL (L) NO. 22 OF 2005 IN NOTICE OF MOTION NO. 1934 OF 2005 IN COUNTER CLAIM STAMP NO. 2508 OF 2004 IN SUIT NO. 1330 OF 2000 Kanayalal Madhavji Thakkar .. Appellant Vs. Shree padmanabh Builders .. Respondent Mr. K. D. Shah for the Appellant. Ms. Aakanksha V. Thakkar i/b Purnand & Co. for the Respondent. Mr. Ravi Kadam Advocate General with Mr. G. W. Mattos, AGP for the State. CORAM : F. I. REBELLO, J. A. A. SAYED, J. DATE : 9th April, 2010. P.C. 1. On behalf of respondent learned Counsel undertakes to file Vakalatnama within one week from today. Statement accepted. 2. By the present Chamber Summons, appellant impugns the order of the Taxing Master dated 29.03.2007 2 who has held that the order is a decree and the appellant is required to pay the Court fees under Article 4 of Schedule 1 in the sum of Rs.2, 25, 630/-. 3. The appellant in suit where he is the defendant had filed a Counter Claim. The plaintiff filed an objection for rejection of the Counter Claim in terms of Order VII Rule 11 of the Code of Civil Procedure. The learned Judge after hearing the parties was pleased to uphold the contention as raised by the original plaintiff and dismissed the Counter Claim. An Appeal has been preferred against that rejection of the Counter Claim. 4. The Registry raised an objection that the Appeal had not been properly valued and consequently directed additional Court fees to be paid. That order is the subject matter of the present Appeal. 5. On hearing of this Appeal, learned Counsel submits that the order is not a decree within the meaning of Section 2(2) of the Code of Civil Procedure and 3 consequently it is not bound to pay the Court fees as ordered by the Taxing Master. The learned Counsel placed reliance on the judgment of Hon’ble Supreme Court in “Ratansingh Vs. Vijaysingh and others (AIR 2001 SUPREME COURT 279). 6. The question for consideration is whether the order which is the subject matter in Appeal amounts to a decree and as such the order of the Taxing Master is legal and proper. Section 2(2) of the Code of Civil Procedure defines decree. It reads as under : (2) “decree” means the 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 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 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. 7. The application in the instant case was made 4 under Order VII Rule 11 (d) which reads as under. “where the suit appears from the statement in the plaint to be barred by any law.” 8. On a consideration of the definition under Section 2 (2), it is clear that apart from the judgment which conclusively determines the rights of the parties by the inclusive definition the rejection of a plaint as also order under Section 144 (Restitution) falls within the explanation decree. Reliance placed in the judgment “Ratansingh Vs. Vijaysingh and others (Supra) is misplaced. The learned Supreme Court was considering whether the rejection of application of condonation of delay which consequently resulted in the dismissal of the Appeal would amount to a decree. In that context the Supreme Court was pleased to hold that the incidental dismissal of the Second Appeal would mean that order of the decree of the First Appellate Court remained unaffected and the enforceable once again for the period of 12 years therefrom. It is in that context that the observations were made. At any rate that Authority does not in any way support the Appellant. 5 9. In our opinion, therefore, the order of the Taxing Master is within jurisdiction and according to law and consequently Chamber Summons dismissed. 10. The Appellant undertakes to pay the balance Court fees within eight weeks from today. On such failure which the Appeal will be dismissed for non prosecution without further orders. (A. A. SAYED, J.) (F. I. REBELLO, J.)