MAHADEO KARNIK Vs. KESHAV KARNIK

JUDGEMENT

(1.) THE petitioner -appellant came in appeal to this Court against a preliminary decree for partition and he paid a court -fee of Rs. 15/ - only, under Art. 11 of the Indore Court -fees Act. The matter came before Justice Rege who took the view that the appellants were liable to pay ad valorem court -fee on the value of their share. This appellant -applicant valued his share at Rs. 6000/ - and paid the requisite court -fees. After some years the matter came before a Division Bench to which I was a party. The Division Bench on 14th July, 1950, held that the Court -fee of Rs. 15/ - paid on the memorandum of appeal by Mahadeo and Ranganath was sufficient as a partition suit comes under clause (6) of Art. 11 of the Indore Court -fees Act. The appellant now comes for a refund certificate of stamps of Rs. 391 -4 -0 which had been over -paid.

(2.) THERE is no doubt that the applicant -appellant is entitled to the refund of the court -fees paid by him under an erroneous order of this Court. It was held by a Division Bench of the Bombay High Court in : A.I.R. 1950 Bom 4 (Vishnuprasad vs. Narandas) that where the payment of excessive court -fees was due to the fact that under the earlier decisions of the Court suit for partition and the appeals arising therefrom were wrongly treated as falling under S. 7 (5), Court -fees Act, it would be open to the Court to grant a certificate to the appellant entitling him to a refund of the Court -fees amount paid by him in excess. I am in respectful concurrence with this view

(3.) MR . Patel, learned Deputy Government Advocate, urges that the same view has not been taken by a Division Bench Chagla C.J. and Gajendragadkar J. of the Bombay High Court in a recent ruling reported in Karfule Ltd. vs. Arical Daniel Varghese ( : A.I.R. 1953 Bom 73), The facts of this case are distinguishable. Court fees in this case had not been paid either by inadvertence, oversight or by mistake. The refund was sought on the ground that the appeal was withdrawn before it was heard by the High Court. It was contended that the judicial machinery which functions when a litigant comes to the Court did not function in the appeal fully and, therefore, a part of the court -fees ought to be refunded. Repelling this contention, it was observed by the High Court: - -