Malik, C.J. - (1.) The plaintiffs filed a suit in the Court of the Civil Judge, Kanpur, for recovery of a sum of RS. 7,645.43. The plaintiffs' case was that the defendants were plaintiffs' Commission Agents working at Collectorganj, Kanpur, and the plaintiffs had sent to the defendants mustard seed for sale, but as the price was rising they had instructed the defendants not to sell the goods till farther instructions, and contrary to the directions given by the plaintiffs the defendants sold the goods which caused a loss of Rs. 7,345-4-3 to the plaintiffs which the plaintiffs were entitled to recover. The suit was decreed in part on 17 11-1945, and a decree for Rs. 3,039 9-0 was passed in plaintiffs' favour. The defendants thereafter filed an application for review under Order 47, Rule 1, Civil P. C., on 27-8-1946, and claimed that the decretal amount should be reduced by a sum of Rs. 426-15-0. Court fee of only Rs. 0.15 0 was paid on the application as the defendants' Contention was that there were clerical errors in the judgment which could be corrected under Section 152, Civil P. C. and that it was not necessary for them to make an application for review under Order 47, Rule 1 of the Code. The Court was, however, of the opinion that there were no accidental errors and Section 152, therefore, did not apply. The defendants were required to pay proper court, fees on the application for review and the question that has been referred to us for answer is what was the proper court-fee payable on the application.
(2.) The learned civil Judge was of the opinion that in view of the language of Article 5 of Schedule 1, Court-fees Act (VII [7] of 1870) the defendants must pay the court-fees payable on the original plaint. On behalf of the defendants, however, a contention was raised that they wanted the amendment of the decree only to the extent of Rs. 426 15-0 and they should be asked to pay court-fee on that sum and no more. The lower Court decided against the defendants relying on certain decisions of this Court, to which reference will be made later, and the defendants filed an appeal to this Court under Section 6-A, Court fees Act. The case came up before a bench of learned Judges, who, in view of certain decisions of the Madras and Rangoon High Courts, thought it desirable that the question should be decided by a larger bench.
(3.) Article 5 of Schedule 1, Court-fees Act, is as follows: "5.Application for review of judgment, if presented before the ninetieth day from the date of the One half of the fee leviable on the plaint or memorandum of appeal." decree. Learned counsel for the defendants appellants has relied on the word 'leviable' and has urged that the words 'the plaint or memorandum of appeal' should be construed as if they meant plaint or memorandum of appeal asking for the same relief as that asked for in the application for review. In 'In the Matter of Sheikh Maqbul Ahmad,' 31 ALL. 294 the same argument was advanced before a learned single Judge who held that the word 'leviable' was used "in order to provide for an application for review by a defendant or respondent in the case of a suit or appeal in forma pauperis." The word 'leviable' appears to have been used instead of the word 'levied' as the legislature intended that the applicant for review should pay the same court-fee that should have been paid on the plaint or on the memorandum of appeal as the case may be, that is to say, if by reason of the fact that a party was pauper no court-fee had been levied, that would not mean that on a review application by a person who was not a pauper no court fee would be charged; or if on the plaint or the memorandum of appeal incorrect amount had been charged as court-fees, which were not really payable in accordance with the provisions of the Court fees Act, the applicant for review could claim that he should be asked to pay proper court-fees and not the court-fees that had been wrongly levied. We do not think that the use of the word 'leviable' instead of the word 'levied' helps the appellants and makes it necessary for us to hold that the Legislature intended to introduce a fiction and wanted an application for review to be treated as a plaint or a memorandum of appeal. On the language of the Article that suggestion is completely ruled out by reason of the use of definite article 'the' and not 'a' as is used in Article 2A of the same Schedule. Article 2A is as follows: memorandum of appeal asking for the same relief as that asked for in the application for review. In 'In the Matter of Sheikh Maqbul Ahmad,' 31 ALL. 294 the same argument was advanced before a learned single Judge who held that the word 'leviable' was used "in order to provide for an application for review by a defendant or respondent in the case of a suit or appeal in forma pauperis." The word 'leviable' appears to have been used instead of the word 'levied' as the legislature intended that the applicant for review should pay the same court-fee that should have been paid on the plaint or on the memorandum of appeal as the case may be, that is to say, if by reason of the fact that a party was pauper no court-fee had been levied, that would not mean that on a review application by a person who was not a pauper no court fee would be charged; or if on the plaint or the memorandum of appeal incorrect amount had been charged as court-fees, which were not really payable in accordance with the provisions of the Court fees Act, the applicant for review could claim that he should be asked to pay proper court-fees and not the court-fees that had been wrongly levied. We do not think that the use of the word 'leviable' instead of the word 'levied' helps the appellants and makes it necessary for us to hold that the Legislature intended to introduce a fiction and wanted an application for review to be treated as a plaint or a memorandum of appeal. On the language of the Article that suggestion is completely ruled out by reason of the use of definite article 'the' and not 'a' as is used in Article 2A of the same Schedule. Article 2A is as follows: "2A. Application or written The same fee which would bave been statement by a defendant in a suit for payable on a plaint if such defendant partition praying for partition of his a suit for partition." share in the property sought to be partitioned. The Legislature obviously intended that in a case where a defendant claimed partition of his share he would have to pay the same court fee as would have been payable by him if he did file a suit, while in Articles 4 and 5 there is nothing to indicate that the application for review of judgment was to be treated as a plaint or memorandum of appeal. What the third column of these Articles provides is that the fee leviable on such application for review would be the same as "on the plaint or memorandum of appeal.";