1. This petition raises the question whether an appellant who withdraws his appeal of his own free will is entitled to claim a refund of the court-fee paid by him.
2. The facts of the case are simple. The Discount Bank of India Limited, Delhi, brought a suit against one Mr. Misra for the recovery of a sum of Rs. 40,000/- odd but this suit was dismissed on 20-12-1949. On 18-4-1950 the Bank presented a Regular First Appeal in this Court from the order of dismissal. On 25-6-1951 the High Court at Bombay ordered that the Bank be wound up and in March 1953 the liquidator presented an application under Section 151, Civil P. C. in which it was prayed that he may be allowed to withdraw the appeal and that the court-lee paid by him be ordered to be refunded. The question is whether the request for the refund of the court-fee should be acceded to.
3. The power of the High Court to order a refund of the court-fee is limited to only three cases, namely, (1) when the statute itself authorises the refund; or (2) when an overpayment has been made as the result of a mistake; and (3) when an overpayment has been made as the result of a mistaken demand by the Court itself.--Jawala Singh v. Ghulam', AIR 1933 Lah 351 (A);-- 'Om Parkash Gupta v. United Provinces', AIR 1951 All 205 (B) and -- 'In re Nagarathnam', AIR 1950 Mad 629 (C).
4. It is a well known rule of law that in the absence of a contract or express statutory provision, a payment made by a person of his own free will cannot be recovered, unless the Court is satisfied that the said payment was made as the result of duress, fraud, mistake or failure of consideration. The present request for repayment is not authorised by statutory provisions, for there is no provision of law which entitles an appellant who withdraws his appeal of his own accord to claim a refund of the court-fee paid by him. Compare -- 'Secretary of State v. Narayan Balkrishna', 29 Bom 102 (D). The Court may have power to authorise the refund of the fees which have been erroneously or illegally assessed or collected bat it has no power express or implied, to pay back the fees as a matter of gratuity when they have been legally collected.
5. For these reasons I am of the opinion that the application for permission to withdraw the appeal must be allowed but that the applicationfor refund of the court-fee must be dismissedwith costs.
6. I agree,