1. This is a reference under Section 5, Court-fee Act, 1870, and the question raised is whether an application under Section 13 of the Act, for refund of Court-fee. The application is question was the made to the High Court which passed the remand order in consequence of which the refund is claimed. Under Schedule 2, Article 1(d) a court-fee of Rs. 2 is chargeable upon every application (not otherwise specially provided for) when presented to a High Court, unless some ground for exemption is established. The applicant claims exemption under Section 19, Clause 20. This lays down that no fee is chargeable upon an
application for the payment of money due by Government to the applicant.
2. Prima facie this clause is applicable to the facts of this case. The court-fee was credited to Government. If the court-fee is refundable under Section 13 (which is mandatory and not discretionary in its terms) then I think it must be held that the money claimed is due by Government to the applicant, and an application for the payment of suoh money is covered by Section 19(20).
3. It is admitted that the practice of this Court before 1927 was to charge no court-fee on applications for the refund of court-foes. The Taxing Officer relies upon a local Government notification No. C/276/X-530-1927 for holding that the previous practice was wrong. That notification modified the court fee proscribed in Schedule 2, Article 1(d) in respect of applications to the High Court for payment of deposits. Instead of a final fee of Rs. 2 being payable on every such application, the notification laid down a graduated scale of fees, starting with two annas, according to the amount of the deposit. This notification does no doubt show that court-fees are chargeable on applications for payment of deposits made by parties to civil suits. It his also been expressly held in Haridasi Debi v. Gopeshwar Pyne A.I.R. 1923 Cal. 599 that an application for the refund of a deposit, for costs of the preparation of a paper book of a Privy Council appeal is chargeable with a court-fee. In my opinion neither the notification nor the ruling are in point. The repayment of a deposit is very different from the refund of a court-fee. The money paid for a court fee is paid to Government outright. If the money is refundable under Section 13 the money is due by Government. The incidents of deposits made by parties in civil suits are quite different. I think it is only through a misunderstanding that the notification has been taken to mean that court-fees are chargeable on applications for the refund of court-fees and the previous practice has accordingly been changed. The language of Section 13 supports the view that no court-fees are chargeable on applications for refund under that section. It is laid down that the full amount of fee is to be paid. In the present case the applicant claims a refund of Rs. 3-12-0. If he has to pay a fee of Rs. 2 in order to claim Rs. 3-12 0, I do not think he can properly be said to recover 'the full amount of fee.' If the sum claimed is less than Rs. 2, as it might be, it seems absurd to require the applicant to pay a further court-fee exceeding the amount claimed. If the Act required such applications to be charged with court-fees I think Government would certainly have introduced a graduated scale of fees (as it has done in the case of deposits) in order to avoid the absurdity of charging Rs. 2 on an application for the refund of sums less than Rs. 2. In my opinion Section 19, Clause 20, covers the case and no fee is chargeable on the application.