STATE OF UTTAR PRADESH Vs. PT CHANDRA BHUSHAN MISRA

JUDGEMENT

(1.) A second appeal under Section 100 of the Code of Civil Procedure 1908 was allowed by the Allahabad High Court and the matter was remanded to the Lower Appellate Court for fresh disposal in accordance with law. The order of remand was made under the provisions of Order XLI, Rule 23 of the Civil Procedure Code 1908, as amended by the Allahabad High Court. The successful appellant before the High Court filed an application under Section 13 of the Court Fees Act, 1870 claiming a refund of the Court fee paid in the Second Appeal. The application came before G.C. Mathur, J., who entertained a doubt whether Section 13 of the Court Fees Act applied to a case of remand under the provisions of Order XLI Rule 23, Civil Procedure Code as amended by the High Court and referred the question for the consideration of a Full Bench. Thereafter the application was heard by the Full Bench consisting of Jagdish Sahai, Pathak and Kirty, JJ. Pathak and Kirty JJ. took the view that refund of Court-fee could be ordered under Section 13 of the Court Fees Act, even where the remand was made under the amended provisions of Order XLI Rule 23. Jagdish Sahai, J. dissented. In accordance with the opinion of the majority, the court fees paid by the appellant before the High Court was directed to be refunded. The State of U.P. obtained a certificate under Article 133 (1) (c) of the Constitution and has preferred this appeal.

(2.) Section 13 of the Court-fees Act. 1870, in so far as it is material is as follows:

(3.) In order to answer the question a reference is necessary to Section 158 of the Code of Civil Procedure 1908. It is as follows: