In Re: Rachakonda Nagarathnam

Panchapakesa Ayyar, J.—This is a petition filed by Mr. M. Seshachalapathi, u/s 151, Civil P. C., for a direction to refund the court-fee of

Rs. 149-15-0 paid by the petitioner, Nagaratnam, in an unnumbered Second Appeal, S. R. No. 40609 of 1948, sought to be presented to this

Court against A. S. No. 310 of 1947 on the file of the Sub-Court, Guntur. The facts are briefly these. Nagaratnam, Mr. Seshachalapati''s client,

wanted to file a second appeal against the judgment and decree in A. S. No. 310 of 1947, and, therefore, filed S. R. No. 40609 of 1948, with the

correct court-fee of Rs. 149-15-0, due on the valuation given therein, on 22nd November 1948. That S. R. was returned to the petitioner on 10th

February 1949 for the lodgment schedule receipt for Rs. 25 in two days. Nagaratnam did not file the lodgment schedule receipt at all. Instead, she

negotiated with the other side, compromised with him, and settled the matter. She re-presented S. R. No. 40609 of 1948 only on 3rd August

1949 and with a petition claiming a refund certificate for the court-fee paid by her as she had already settled the matter.

The question, therefore, is whether this Court should grant her a refund certificate for Rs. 149-15-0, the court fee paid on the appeal

memorandum, or whether it should refuse the petition altogether, or grant any other relief possible u/s 151, Civil P. C.

It has been held in Thammayya Naidu v. Venkataramanamma, 55 Mad. 641 : A. I. R. 1932 Mad. 438 that a Court''s power to allow the refund

of court-fee stamps is not confined in Sections 13, 14 and 15, Court-fees Act, and that, u/s 151, Civil P. C., it has got some more though strictly

limited, powers. In re Chidambaram Chettiar, 57 Mad. 1028 : A. I. R. 1934 Mad. 566, a later case, we see what these powers u/s 151 are. It has

been held there that a Court can order refund of the court-fees, u/s 151, where there is an excess payment made by mistake or where on account

of the mistake of the Court a party has been compelled to pay court-fees either wholly or in part. It was definitely held in that case that, outside

these cases, a Court had no power to order refund, u/s 151. In C. M. P. Nos. 4439 to 4442 of 1941 (unreported) Leach C. J. and Happell J. in

four petitions almost identical in nature with the present one, for the exercise of the inherent power of the Court, u/s 151, Civil P. C., to refund the

court-fees paid in certain appeal memoranda, not numbered as appeals because of the reluctance to pay the deficit court-fee rightly demanded,

have remarked that there is no provision in the Court-fees Act, on which the petitioners could rely for a refund of the court-fee paid on the appeal

memoranda filed by them and withdrawn by them before numbering. They went on to say:

The petitioners are asking something which the Court has no power to grant them. In re Chidambaram Chettiar, 57 Mad. 1028: A. I. R. 1934

Mad. 566, a Bench of this Court held that the Court has no power to order a refund of court-fees except in three cases, namely, (1) where the

Court-fees Act applies, (2) where there is an excess payment made as the result of a mistake and (3) where on account of the mistake of the

Court a party has been compelled to pay court-fees either wholly or in part. A decision to the same effect was given by another Bench of this

Court In Re: B. Kappini Gounder and Others, . These decisions are binding on us and provide the answer to these applications which will be

dismissed.

The present case falls within the scope of the above decision of Leach C. J. and Happell J. and this Court has no power to grant a certificate for

the refund of the court-fees, since it is obvious that the Court-fees Act will not apply, and the petitioner did not pay by mistake any excess court-

fee, and no court-fee was collected from the petitioner by a mistake of the Court. It is a case where the petitioner wanted to file a second appeal

and so filed a memorandum of appeal affixing the proper court-fee stamps but then compromised with the other side and made the second appeal

unnecessary by such compromise. So, the request to giant a refund certificate is rejected.

But it may be urged that this is a case of court-fee getting spoilt, without being used for an appeal something like a stamp paper getting spoiled

without being used for a document. Even if that is so, the petitioner''s remedy, if any, is not to apply for a refund certificate from the Court, but to

apply to the Government ex gratia and misericordia domini regis (""by favour"", and ""by the mercy of our Lord the King"") for a refund less the one

anna in the rupee deductions, as for spoilt stamp papers, if they are pleased to grant it. For this purpose alone, a certificate will be granted to the

petitioner, as requested by him, that the second appeal was not numbered or heard by this Court and that the appeal memorandum has been

stamped with a court-fee of Rs. 149.15-0, and that the court-fee stamps have been defaced by the High Court office in the usual course of routine.

I see no objection to granting a certificate to that effect u/s 151, Civil P. C. The Government will, of course, pass such orders as they like, after

perusing this certificate, as it is wholly ex gratia and misericordia domini regis. The re-presented appeal memorandum, which has now become

unnecessary for retention in this Court, will be, as requested by the petitioner, returned to him for prosecuting his ex gratia and misericordia domini

regis application to the Government, if so advised.