NABEESA Vs. IBRAHIM

JUDGEMENT

(1.) This appeal was disposed of on the basis of a compromise, by judgment dated 4.6.2002. Subsequently it was noted that the balance court fee of Rs. 6,848/- was not paid. Since the appellants did not pay the court fee, the matter has come before us. The appeal, A.S. No. 502 of 2001 was filed against the judgment and decree in O.S. No. 737 of 1994. The appellants are the plaintiffs. The total valuation of the appeal is Rs. 1,60,500/-. The court fee payable is Rs. 10,273/-. 1/3rd court fee paid is Rs. 3,425/-.

(2.) After paying 1/3rd court fee, the appeal was admitted on 8.10.2001 by a Division Bench. Notice was sent to respondents 1 and 2 and it was signed. Respondents 1 and 2 were represented by Advocate Sri. D.B. Binu. On 1.6.2002, office noted that the court fee was not paid. On 29th May, 2002, CMP No. 1846 of 2002 was filed for compromise under O.23 R.3 of the Code of Civil Procedure. That petition came before the Bench and on 4.6.2002, the compromise was recorded and the judgment was passed on the basis of the compromise. At the time of pronouncing the judgment, it was not noted that the court fee was not paid.

(3.) S.52 of the Act deals with payment of court fee in appeal. The Second Proviso to S.52 of the Act states as follows: Provided further that one third of the fee payable in an appeal shall be paid at the stage of admission of first appeal or second appeal as the case may be and the balance shall be paid within such period, not later than fifteen days from the date of such admission as may be specified by the court; in case the appeal is admitted. S.149 of the Code of Civil Procedure clothes the court with power to allow time for the payment of court fee. In this case, at the time of admission, no time limit was prescribed for payment of balance court fee. The appeal was admitted on 8.10.2001. So, as per the Second Proviso to S.52 of the Act, time for payment of court fee is before 7.11.2001. Even though no order was passed, since the Act prescribes a time limit, it was the duty of the appellants to pay balance court fee before 7.11.2001. There was no application for extension of time to exercise the power under S.149 of the Code of Civil Procedure. Hence, at the time when the compromise petition was filed, the balance court fee was liable to be paid on the memorandum of appeal. According to us, in appeal, the balance court fee is liable to be paid within 30 days as prescribed under the Act or within such period as the court deems fit. If within the period given for payment of balance court fee a compromise or disposal on the basis of the admission takes place, then it may not be necessary to call upon the party to pay the balance court fee. But if as a matter of fact, the time for payment of balance court fee is over, then the appeal cannot be disposed of without the balance court fee being paid. The appeal is defective and no compromise petition can be accepted without the balance court fee being paid. It is true that after accepting the balance court fee in a compromise petition, usually refund is ordered. But only half the court fee is liable to be refunded. If the suit is compromised within the date prescribed for payment of fees, then it is not necessary to pay the balance court fee. At the same time, the appellants will not be entitled to get refund of the 1/3rd court fee paid.