- (1.) IN this review application the only question for determination at this stage is whether the petitioner Motilal should be required to pay only (half court-fee as he has done or full court-fee. It is necessary to state a few facts in order to bring out the point in issue clearly. The appeal out of which this review application has arisen was decided by this Court on the 8th September, 1954. The petitioner applied for copies of judgment and decree on the 30th September, 1954. The copies were ready on the 9th December, 1954, but were actually taken by the petitioner on the 14th December, 1954 The petitioner, however, presented his application for review, before, such copies were taken, on the 7th December, 1954. It thus appears that the review application was filed on the90th day of the decree under appeal. The relevant articles of the Court-fees Act are Nos. 4 and 5 of Schedule 1 of the Court-fees Act. They are as follows : - 4th:- Application for review of judgment if presented on or after the 90th day from the date of decree. The fee leviable on the plaint or memorandum of appeal. 5th:- Application for review of judgment, if presented before the 90th day from the date of the decree. Half of the fee leviable on the plaint or memorandum of appeal.
(2.) AS pointed out above, the review application was filed in the present case on the 90th day from the date of the decree and not before the 90th day. It clearly follows, therefore, on a plain reading of these articles that the petitioner must pay full court-fees leviable on the memorandum of appeal on his review application, as it was filed on the 90th day from the date of the decree. Learned counsel then draws my attention to sec. 29 (2) of the Limitation Act in support of his contention that he should not be required to pay more than half the court-fees in the present case. Sub-sec. (2) is in these terms - "where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of sec. 3 shall apply, as if such period were prescribed, therefor, in that schedule and for purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. (a) The provisions contained in sec. 4 secs. 9 to 18 and sec. 22 shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. " The contention is that the Court-Fees Act, which is a special law, prescribes a period of limitation different from Art. 173 of the Limitation Act (which prescribes a period of 90 days for a review application from the date of the decree) and so the period prescribed by the Court-fees Act should be taken to have been prescribed in the first schedule of the Limitation Act and further the benefit of sec. 12 of the Limitation Act is also thereby called into operation. Put simply, the argument is that if the period which is the time requisite for obtaining a copy of the judgment and decree is excluded from the total period taken by the petitioner in filing his review application, it would appear that the application was presented before the 90th day and, therefore, the petitioner is well within his right in putting in half the court-fee only as he has done. The argument is attractive but is in my opinion fallacious. The question of payment of court-fees with which alone I am concerned is and must be governed by the provisions of the Court Fees Act and not by the Limitation Act. There is no question of limitation at all which I am called upon to consider. I am, therefore, of the opinion that sec. 29 is not called into operation at all. It appears to me that the intention of the legislature while enacting Arts. 4 and 5 of schdl. 1 of the Court-Fees Act was that such applications must be filed as expeditiously as possible and that if a litigant filed before the 90th day, he would have a facility, namely, that he could do so on payment of half the court-fee only. If the petitioner, how ever,allowed this time to pass, then he is required to pay the full court-fees leviable on the plaint or memorandum of appeal as the case may be There appears to me to be nothing wrong in this scheme of things and I am clearly of the opinion that nothing contained in sub-sec. (2) of sec. 29 really affects this conclusion as that section must, in my opinion, be held to make a provision for limitation only in so far as a special or local law may prescribe for any suit, appeal or application a period of limitation different from that prescribed under the Limitation Act. The conclusion at which I have arrived receives support from the judgment in Ganpatrao Samrao Saraf vs. Rami Ganpati Teli (l ). In this view of the matter I hold that the court-fee put in by the petitioner on his review application in the present case is not adequate and that he must pay the full court-fee leviable on the memorandum of appeal. He is hereby directed to make good the deficiency within 15 days of this order. Learned counsel for the petitioner lastly contends that in any event he may be allowed a refund to the extent of half court-fees by virtue of the provisions of sec. 14 of the Court-Fees Act as the delay in filing the review application was not due to any laches on his part. That section reads as follows: - "where an application for a review of a judgment is presented on or after the 90th day from the date of the decree, the Court-unless the delay was caused by the applicant's laches, may, in its discretion, grant him a certificate authorising him to receive back from the Collector so much of the fee paid on the application as exceeds the fee which would have been payable had it been presented before such date " I am, however, of opinion that the question of refund can arise property only where the full court-fee has been paid. This has obviously been not done in the present case. The request of learned counsel for refund is, in these circumstances, premature. It will be open to him to raise the question if so advised after he has paid the full court-fees and if and when such an application is made it will be disposed of on the merits. .;