Report No. 240
6.15 There are two problems which the Commission would like to point out in connection with the filing of fee certificate. In most of the rules, the fee certificate is required to be filed within one week of the termination of the case as the decree has to be drawn up within 15 days from the date of the judgment as enjoined by Rule 6A of Order XX. Rule 6 lays down that the Decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid.
Rule 1 of Order XLI (dealing with appeals from original decrees) requires the memorandum of appeal to be accompanied by a copy of the judgment. The earlier requirement was that a copy of decree should be annexed to the memorandum of appeal. The Law Commission in its 124th Report expressed the view that Order LXI, Rule 1 should be amended so as to dispense with the requirement of annexing certified copy of the decree and the appeal be allowed to be filed by producing the operative part of the judgment along with the memorandum of appeal.
Presently, there is no bar to filing the appeal without the decree in which the costs have to be specified. If so, the prescription of 15 days time under Rule 6A of Order XX needs to be revisited. Accordingly, in rule 6A, the words '15 days' may be substituted by the words '30 days'. The reason is that it is common experience that the fee certificate is not filed in time or the bill of costs specifying the various expenses incurred by the party concerned is not filed promptly. Quite often, the advocate for the party does not turn up before the taxing officer.
Delays in the filing of bill of costs with all the requisite details including the fee certificate has become a common occurrence. Quite often, applications are filed seeking condonation of delay in filing fee certificate or other proof. To tackle this problem, apart from extending the time for drafting the decree (as indicated above), it is desirable that High Courts frame a rule to the effect that the fee certificate shall be filed by both the advocates before the conclusion of arguments.
The Court should cause a verification to be done as regards the filing of fee certificate at that stage. However, if any practical difficulty is pointed out by the learned advocate for complying with the rule, the court may allow the certificate to be filed within 15 days from the date of judgment. It is also necessary to prescribe in the rule that the fee certificate should, inter alia, contain the Permanent Account Number of the advocate.
6.16 In this context, we may refer to section 118 of CPC which lays down that if the High Court considers it necessary that a decree passed in the exercise of original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith and that the decree so far as it relates to costs shall be executed as soon as the amount of costs are ascertained by taxation.