1. This is an application for the refund of court-fees paid in this Court and there is an oral prayer that the court fee paid in the lower appellate Court should be refunded.
2. The trial Court dismissed the suit against defendants 4, 5 and 6, and decreed the claim against defendants 1, 2 and 3, The plaintiffs appealed to the District Judge claiming that a decree should be passed in their favour against defendants 4, 5 and 6 also. They made defendants 1, 2 and 3 pro forma respondents. The District Judge dismissed the appeal. On second appeal to this Court the plaintiffs wanted a decree against defendants 4, 5 and 6 and also made defendants 1, 2 and 3 pro forma respondents. The appeal was in substance directed principally against defendants 4, 5 and 6. The High Court came to the conclusion that the case should be tried on the remaining issues against these defendants 4, 5 and 6 by the trial Court. It accordingly allowed the appeal and set aside the decree of the lower appellate Court as well as that of the first Court and sent the case back to the first Court through the lower appellate Court for trial as against defendants 4, 5 and 6.
3. The plaintiffs now claim that the court-fees paid by them should be refunded. The office has reported that inasmuch as the appeal was not allowed as against some of the pro forma respondents no refund should be ordered. The office relies on 'In the matter of Bhagwanti A.I.R. 1917 All. 314.' This report in our opinion, is not correct. The case relied upon is distinguishable, because in that case there was a decree dismissing the appeal as against one of the respondents with costs. In the present case defendants 1, 2 and 3 were mere pro forma respondents and no claim was made against them, because the plaintiffs had already obtained a decree against them. The whole appeal accordingly was allowed by the High Court when the case was remanded. In our opinion, the order of remand covers the whole of the subject matter in dispute in the appeals and the plaintiffs are therefore entitled to a refund under Section 13, Court-fees Act. It is equally clear that inasmuch as the whole case was referred to the Full Bench and J disposed of by us, it is this Court alone which can order the refund. The learned Counsel for the plaintiffs further contends that inasmuch as the decree of the first 5 Court has also been set aside and the case remanded to the first Court through the lower appellate Court, his clients are entitled to the refund, not only of the court-fees paid in the High Court but also of the court-fees paid in the lower appellate Court. It is however clear that the lower appellate Court disposed of the appeal completely by dismissing it. It did not pass any order or remand. It is only the High Court which on second appeal passed the order of remand under which the case was sent back to the lower Court. Section 13 can apply only when the suit is remanded in appeal and this happened only in the High Court and not before the lower appellate Court. We further find that the practice in this Court has been not to allow a refund of the court-fees paid in the lower Court when the High Court remands a ease. The case of Kanhaiya Lal v. Mahadei : AIR1932All550 in our opinion, is in conformity with the language of Section 13 which contemplates an order for refund by the appellate Court which remands the appeal.
4. We accordingly direct that a certificate be granted to the plaintiff appellants authorizing them to receive back from the Collector the full amount paid on thememorandum of appeal filed in the High Court.