Sinha, J. - (1.) The facts in this case are briefly as follows: The plaintiff-respondent Amulya Gopal Majumdar filed a mortgage suit against the defendant-appellant Eagle Plywood Industries Private Ltd., and defendant-respondent Nos.2 to 5, being Suit No. 117 of 1954 in the Seventh Court of the Subordinate Judge at Alipore. On the 30th April, 1956 the plaintiff-respondent obtained preliminary decree in the said mortgage suit for Rs.52,074/4/6. Against the said decree, the defendant-appellant preferred an appeal in this Court being F.A.T. 1509 of 1956. The appeal was filed with a Court-fee of Rs.100/- with a deficit of Rs.2000/-. On the same day, the defendant-appellant filed an application praying for an extension of time to put in the balance Court-fees till one day after the re-opening of the Court after the long vacation. The Court reopened on the 19th November, 1956. On the 10th September, 1956 the application of the defendant-appellant was granted by the Registrar as prayed for, that is to say, within one day after the reopening of the Court after the long vacation. The time was further extended up to the 20th November, 1956. As the deficit Court-fees was not put in even on the 20th November, 1956 the mater was placed before the Registrar on the 23rd November, 1956. The Registrar granted one week for the making of an application for further extension of time. The application was not made within the time granted by the Registrar. The matter was placed before the Registrar on the 6th December, 1956 and as there was no application for extension, an order was made that the extension could not be granted. On the 10th December, 1956 the defendant-appellant made an application for further extension of time to put in the deficit Court-fees. The Registrar referred it to Court for orders. On the 18th December, 1956 the matter was placed before a Division Bench consisting of Lahiri and Sen, JJ. who passed an order rejecting the memorandum of appeal. On the 3rd May, 1957 the defendant-appellant filed an application for review of the said order rejecting the memorandum of appeal. On the 10th May, 1957 the application for view review was rejected. On the 17th May, 1957 the defendant-appellant presented a fresh memorandum of appeal from the original decree dated 30th April, 1956 upon payment of the full Court-fees of Rs.2100/- together with an application under Section 5 of the Indian Limitation Act for condonation of the delay. A rule was issued by P.N. Mookerjee and P.K. Sarkar, JJ. On the 256th June, 1958 the rule came up for hearing before Lahiri and Sen, JJ. and the said rule was discharged with cost. Thereupon, the defendant-appellant made an application on the 30th August, 1960 purporting to be under Section 151 of the Civil Procedure Code and Section 13 of the Court-fees Act (Act VII of 1870) for an order that a certificate should be granted authorising it to receive back from the Collector the full amount of fee paid on the memorandum of appeal. This application came up for hearing before a Division Bench consisting of P.N. Mookerjee and N.K. Sen, JJ. The learned Judges stated that it had been conceded by the defendant-appellant that Section 13 of the Court Fees Act was not applicable to the facts of the present case. It was contended, however, that the defendant appellant was entitled to refund of the Court-fees under the inherent powers of the Court as may be exercised under Section 151 of the Code of Civil Procedure. The learned Judges pointed out that the question, therefore, arose as to whether under such circumstances the Court had any such inherent power in the matter or whether the Court's power of refunding the Court-fees was limited to the provisions contained in that behalf in the Court Fees Act. The learned Judges pointed out that upon this point there were two directly conflicting Bench decisions of this Court. In J.C. Galstaun v. Raja Janaki Nath Roy and Ors., 38 CWN 185 a Division Bench presided over by Mallik, J., held that where a memorandum of appeal had not been registered on the ground that it was out of time and the delay had not been caused by any lack of bona fides on the part of the appellant, he was entitled to a certificate for refund of the Court-fees, paid, such certificate being granted in exercise of the inherent powers of the Court. In Abodh Bala Ghosh v. Sm. Radharani Dasi, 55 CWN 417, a subsequent Division Bench of this Court presided over by Das, J. held exactly to the contrary namely, that under such circumstances the Court had no inherent power to direct the refund of Court-fees. The learned Judges noticed the case of J. C. Galstaun v. Raja Janaki Nath Roy and Ors., but somehow dissented from the same, but somehow or other did not refer the matter to a Full Bench, although, according to the rules, they should have done so. The Bench considering the application for refund in the instant case noticed this conflict in the two Bench judgments of this Court mentioned above and has referred the matter to a Full Bench for its opinion on the following point of law, under Rule 3 of Chapter VII of the Appellate Side Rules of this Court :- "Whether, when an application under Section 5 of the Indian Limitation Act is rejected, the appellant can, in any circumstance, get refund of the Court-fees, paid on the accompanying memorandum of appeal, under Section 151 of the Code of Civil Procedure."
(2.) A large number of authorities were cited before us on the question as to under what circumstances an application lay for refund of Court-fees. The precise point, however, which we have to consider is as to whether, when a memorandum of appeal is presented with proper Court-fees but out of time with an application for condonation order the delay, if the delay is not condoned, the Court could under its inherent power give a certificate for refund of the Court-fees paid. I shall first of all deal with the cases which are apposite upon this point.
(3.) The first case to be considered is the case of J.C. Galstaun v. Raja Janaki Nath Roy and Ors., 38 CWN 185. The facts in that case were as follows: On the 13th June, 1933 the petitioner presented to the High Court a memorandum of appeal from the appellate decree passed by the learned Additional District and Sessions Judge, 24-Parganas, in Title Appeal No.60 of 1931. The said memorandum of appeal was not registered by the office as it was out of time. Thereupon, the petitioner made an application under Section 5 of the Limitation Act for condonation of the delay. The application was rejected, with the result that the appeal remained unregistered. The petitioner thereupon made an application praying for a certificate that the appeal had not been registered and for return of the memorandum of appeal and the stamps filed therewith together with a certificate for refund of the value thereof. The learned Judge held that the matter did not come within the purview of Section 13 of the Court Fees Act, but that Section 13 was not exhaustive and that the High Court in suitable cases may exercise its inherent powers vested in it by Section 151 C.P.C. and other refund of Court-fees paid. It was held that it was a fit case where this inherent power should be exercised in favour of the petitioner under Section 151 of Code of Civil Procedure. The petition was accordingly allowed and the Court directed the return of the memorandum of appeal with the certificate prayed for. Although the learned Judge mentioned that previous decisions of this Court existed, regarding the exercise of inherent powers, none were cited in the judgment. The next case to be considered is a Bench decision of this Court, Sm. bodh Bala Ghose v. Sm. Radharani Dasi, 55 CWN 417. The facts in that case were as follows. On 22nd May, 1950 the petitioner filed a memorandum of appeal being F.A.T. 227 of 1950 with full Court-fees. As the appeal was filed out of time the petitioner made an application under Section 5 of the Indian Limitation Act for extension of time to file an appeal and obtained a rule. The rule was discharged and the time was not extended. On the 17th August, 1950 an application was made for refund of the Court-fees. The petitioner relied on the case of J.c. Galstaun v. Raja Janaki Nath Roy & Ors., noticed above. The respondent relied on the case of Indu Bhusan Roy Chaudhury v. The Secretary of State for India in Council, 40 CWN 309. I have already referred to Galstaun's case (supra) above. In the case of Indu Bhusan Roy Chaudhury (supra) a Division Bench of this Court presided over a Nasim Ali J., dissented from the decision in Galstaun's case. In that case, the petitioner instituted a suit for rent in the first Court of the Subordinate Judge at Khulna. The plaint was insufficiently stamped and was rejected. Then the petitioner applied to pay the deficit Court-fees and the suit was restored to the file by an order purporting to be made under the inherent jurisdiction of the Court under Section 151, C.P.C. Subsequently this order restoring the suit to the file was set aside, whereupon the petitioner made an application for a certificate authorising him to receive back from the Collector the value of the stamp paid on account of Court-fees. It was held that even apart from the provisions of Sections 13, 14 and 15 of the Court Fees Act, the Court had issued a certificate for refund of Court fees in suitable cases under Section 151 of the Code of Civil Procedure. Nasim Ali J., said as follows :- "The present application admittedly is not covered by Sections 13, 14, 15 of the Court Fees Act. We are asked, however, to issue a certificate under the inherent power of the Court. the learned senior Government Pleader contends that the Court has no power to issue certificate apart from the provisions of the Court Fees Act. The reported cases, however, show that this Court as well as other High Courts have issued certificate under the inherent power of the Court in cases where excess Court-fees have been paid by inadvertence (In the matter of Grant 14 WR 47, Harihar Guru v. Ananda Mahanty, ILR 40 Cal 365 and In the matter of Munna Lal, ILR 52 All 546 (2) where a litigant has made excess payments under an erroneous view of the provisions of the Court Fees Act (Thammayya Naidu v. Venkataramanamma, ILR 55 Mad 641, Vijyalakshmi Ammal v. K.R. Srinivasa Ayyangar, ILR 57 Mad 542, Chandra Hari Singh v. Tipan Prosad Singh, 1918 Pat. 273 and Mahammad Reza v. Rajballabh Nath Singh, 9 PLJ 204), (3) where the Court has realised excess Court-fees on an erroneous interpretation of the Section of the Court Fees Act (Girish Chandra Mali v. Girish Chandra Dutta, 36 CWN 190). The principle underlying these cases seems to be that government should not profit by the mistake of a litigant or of Court as to the amount of Court-fees payable under the Court Fees Act, and in cases of such mistakes the Court should order refund for ends of justice. This is an intelligible principle. Government cannot reasonably object to refund the excess as it is not legitimately due under the statute. The present case does not come within the principle.";