Modi, J. - (1.) THIS is an application by the appellant Jethanand, as proprietor of the firm Messers Jethanand Wadhumal & Co. Ajmer for refund of court-fee paid by him in this appeal under sec. 151 of the Code of Civil Procedure.
(2.) THE applicant was defendant in a suit brought against him by the plaintiff for damages on account of breach of contract. THE trial court dismissed the suit. THE plaintiff went in appeal to the District Judge, Ajmer who set aside the judgment and decree of the trial court and remanded the suit for trial. This order was obviously passed under Order 41 Rule 23 of the Code of Civil Procedure in as much as the trial court had dismissed the suit on a preliminary issue, and that finding was set aside by the learned District Judge. THEreupon, the defendant filed an appeal in this Court, which he called civil second appeal No. 65 of 1957. A court fee of Rs. 125/- was paid by him on the memorandum of appeal, which was presented in this Court on the 10th September, 1957. Learned counsel seems to have soon realised that he had made a mistake in paying the court-fee of Rs. 125/- on the memorandum of appeal and, therefore, he made an application on the 20th September, 1957 in which he submitted that he had filed a second appeal under a bonafide mistake and had paid a court-fee of Rs. 125/- instead of a fixed court-fee of Rs. 2/- only which was payable on a civil miscellaneous appeal of this character. A notice was ordered to be issued to the State on this application. I have heard learned counsel for the appellant and the learned Deputy Government Advocate. It is conceded before me that the present application is not covered by sections 13, 14 or 15 of the Court Fees Act and, therefore, no refund can be ordered so far as those sections are concerned. The only question for consideration in this situation is whether a refund can be ordered under sec. 151 of the Code of Civil Procedure. In this connection, I should like to refer to the decision of this Court in Shrilal vs. Gujanand (1) to which I was a party. In that case, the suit was decreed by the trial court. The defendant then presented an appeal to this Court and his main argument was that he had not been allowed sufficient opportunity to cross-examine the witnesses for the plaintiffs. This argument prevailed and the decree of the trial court was set aside, and the suit was remanded with proper directions as to how the trial should proceed. Thereafter, an application for refund of court-fee was made by the defendant on the ground that the order of remand was passed under Order 41 Rule 23 of the Code of Civil Procedure and, therefore he was entitled to the refund of court-fee paid. It was also prayed in the alternative that even if the order of remand came under sec. 151 of the Code of Civil Procedure, the Court had the discretion to order refund of court-fee and that the same should be ordered. On a careful consideration of several authorities of the various High Courts it was held that the court-fee had been properly levied in this case. It was also held that there was no case for the use of sec. 151 C. P. C. for purposes of ordering the refund of court-fee, for it could hardly be said that there was any mistake or any abuse of the process of court in levying the court-fee provided by law. It was further held that the Court in that case having already felt persuaded to use its inherent powers in favour of the appellant to give a relief to which he was not ordinarily entitled there was no justification to give further redress under sec. 151 by way of refund of court-fee which was properly levied under the Court Fees Act. The point to note, however, is that while that was the actual decision in the case, it was recognised that where excessive court-fee had been wrongly charged by or paid to the State, the Court was entitled to order the refund of the portion in excess in the exercise of its inherent powers. Reference was made in this connection to Munnalal vs. Ramchandra (2), Abdul Majid Mridha vs. Amina Khatun (3) and Vishnuprasad vs. Naraindass (4 ). To these authorities, may also be added Themmayya Naidu vs. Venkataramanamma (5) and Jawala Singh vs. Ghulam (6 ). After giving my careful consideration to the fact and circumstances of this case, I have no hesitation in holding that this was really a civil miscellaneous appeal under Order 43 Rule l (u) C. P. C. as indeed the appellant himself had mentioned in the title to the appeal, though at the very head of the appeal by some mistake, he had also called it a civil second appeal. This was, therefore, really an appeal against an order of remand under 0. 43 R. l (u) C. P. C. and the proper court-fee payable thereon was admittedly Rs. 2/ - and no more. It is, thus, obvious that learned counsel who filed the appeal had paid a court-fee Rs. 125/- on the memorandum of appeal by sheer inadvertence. I am also clearly of the opinion that a case like the present falls within the category of the exceptional cases noticed in the Bench decision to which I have made a reference above or in other words, it is not a case where the court-fee was properly levied as it was, because if that had been the case), then according to the view held by this Court, there would have been no power left to the Court to refund the court-fee, unless the case fell within the provisions of the Court Fees Act itself. What, however, distinguished the present case from Shrilal's case (1) is that whereas the court-fee was properly levied in that case and a refund was then asked for, it cannot be gainsaid that in the present case, the court-fee was not properly paid as on a miscellaneous appeal against an order under Order 41 Rule 23 C. P. C. , but it was levied as if it was a civil second appeal against a decree which was certainly nothing but an unfortunate mistake or inadvertence on the part of the learned counsel who prepared the memorandum of appeal and filed it in this Court. It seems to me that in such a case, even though it is not covered by the provisions of the Court Fees Act, this Court has the authority to order a refund of the court-fee inadvertently paid in the exercise of its inherent jurisdiction u/s 151 C. P. C. and I order accordingly. The result is that I allow this application and hereby direct that a certificate shall be granted to the applicant that he is entitled to a refund of court-fee amounting to Rs. 123/-, which is the difference between the court-fee actually paid by him and that which he should have properly paid. I make no order as to costs. .;