Varkey Skaria vs The State

M.S. Menon, J.—The question for decision is whether the court-fee on this application for a review of the judgment in A.S. No. 682 of 1950 should be calculated under Art. 3 or 4 of Sch. I to the Travancore-Cochin Court Fees Act, 1125. Article 3 prescribes one half of the fee leviable on the plaint or memorandum of appeal if the application is presented "before the ninetieth day from the day of the decree'' and Art. 4 for the full fee leviable on the plaint or memorandum of appeal if the application is presented "on or after the ninetieth day from the date of the decree". The 89th, 90th and 91st days from the date of the decree in this case were holidays and the application was presented immediately thereafter, that is, on the 92nd day after the date of the decree.

It was contended before us that by virtue of S. 9, Travancore-Cochin Interpretation and General Clauses Act, 1125, the presentation of the application on the 92nd day should be deemed to be a presentation on the 89th day itself and that only the moiety of the court-fee prescribed by Art. 3 of Sch. I need be paid.

Section 9, Travancore-Cochin Interpretation and General Clauses Act, 1125 provides:

Where by any Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is. closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open;

Provided that nothing in this section shall apply to any act or proceeding to which the Limitation Act for the time being in force applies.

The Indian Limitation Act, 1908 (Central Act IX of 1908) has been extended to this State and Art. 173 of that enactment prescribes a period of 90 days from the date of the decree or order as the period of limitation for a review of judgment (except in cases provided for by Arts. 161 and 162) and in view of this the application for a review should be considered as an "act or proceeding to which the Limitation Act for the time being in force applies". The Proviso to S. 9, Travancore-Cochin Interpretation and General Clauses Act, 1125 makes it quite clear that in such cases S. 9 itself has no application and it follows that the court-fee has to be appraised without any reference thereto.

Mr. Govindan Nair, learned counsel for the petitioners, frankly conceded that if S. 9 is not available to his client court-fee as provided in Art. 4 will have to be paid and that S. 4, Limitation Act, 1908 (Central Act 9 of 1908) will be of no avail. It is unnecessary for us to decide whether even if S. 9 is applicable the full fee has to be paid or not as we are clearly of the opinion that in view of the Proviso to S. 9 that section has no application to the present case, and that the full court-fee has to be paid. We order accordingly.

It may be that the petitioner will be entitled to a refund under S. 10(e), Travancore-Cochin Court Fees Act, 1125; but that is a matter for the future and does not arise for consideration at present.