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Kanhaiya Lal Vs. Mt. Machadei - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All550a
AppellantKanhaiya Lal
RespondentMt. Machadei
Excerpt:
- .....instance. on appeal to the lower appellate court the latter held that defendants 3 to 5 were liable, but defendants 1 and 6 were not liable. the lower appellate court accordingly sent back the case to the court of first instance for adjudication of the liability of defendants 3 to 5. the plaintiff was dissatisfied with this order of the lower appellate court and filed a second appeal. here this bench held that defendants 1 and 6 were equally liable and passed the following order:we modify the decree of the court below and remand the suit to the court of first instance for trial in its entirety.2. now the question is whether this is a case which is covered by section 13, para. 1. if we read the words lower court as including the court of first instance where the appellate court is.....
Judgment:

Mukerji, J.

1. This is an application to refund the court fee paid on the memorandum of appeal by the appellant under Section 13, Court-fees Act. The office report is in favour of the applicant, but we have considered the provisions of Section 13, in view of the rather complicated case before us. It appears that the suit was brought against six defendants for recovery of a certain sum of money by sale of property. The suit was dismissed in toto by the Court of first; instance. On appeal to the lower appellate Court the latter held that defendants 3 to 5 were liable, but defendants 1 and 6 were not liable. The lower appellate Court accordingly sent back the case to the Court of first instance for adjudication of the liability of defendants 3 to 5. The plaintiff was dissatisfied with this order of the lower appellate Court and filed a second appeal. Here this Bench held that defendants 1 and 6 were equally liable and passed the following order:

We modify the decree of the Court below and remand the suit to the Court of first instance for trial in its entirety.

2. Now the question is whether this is a case which is covered by Section 13, para. 1. If we read the words lower Court as including the Court of first instance where the appellate Court is the High-Court, no difficulty would arise in granting the appellant the relief he asked for. In the last line of Section 13, para. 1, the words 'memorandum of appeal' would mean the memorandum of appeal filed in the High Court. We do not see why we should give the expression 'lower Court' a restricted meaning. This being a fiscal enactment, it should be read, as far as possible, in favour of the subject, and we therefore decide that the words 'lower Court' would include the Court of first instance. Then comes the proviso for our consideration. The whole of the subject-matter of the suit; has not been remanded by us and therefore the certificate to be granted should authorize the appellant to receive only so much of the fee as would have been-originally payable on the part of the subject-matter of the suit remanded. This, we take it, is the fee which has been paid by the appellant in his memorandum of appeal to this Court, because he was appealing only against the order which was in favour of defendants 1 and 6. In the circumstances, the whole fee-paid by the appellant is refundable as reported by the office. We order accordingly.


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