D.S. Dave, J.
1. This is an application by the plaintiffs for refund of court-fees under Section 13 of the Court-fees Act and arises in the following circumstances :
2. The plaintiffs filed a suit in the court of the Civil Judge, Jalore, for Rs. 7000/ on the basis of a bond, which was said to have been executed by Zalim Singh, Jagirdar of Rathora. Zalim Singh having died, the suit was filed against his two widows Mst. Pep Kanwar and Mst. Bachan Kanwar. Defendant No. 3 Jeevraj Singh was impleaded on the ground that he claimed to be the adopted son of Zalim Singh. Ganpat Singh was impleaded as defendant No. 4 since he claimed to be the nearest heir of Zalim Singh. The State of Rajasthan was also impleaded as defendant No. 5 since the property of the deceased was said to have been taken in Zapti. The trial court dismissed the suit on the ground that notice under Section 80 C. P. C. was not served on the State and that a notice under Section 55 of the Rajasthan Court of Wards Act ought to have been served on the Court of Wards and without such notices the suit was not maintainable. Aggrieved by this judgment, the plaintiffs filed an appeal in this Court. During the pendency of the appeal, Mst. Pep Kanwar, respondent No. 1 died and her name was struck off. The name of respondent No. 3 Jeevraj Singh was also struck off from the array of respondents, since by that time it was decided that Gan-pat Singh was the rightful heir of Zalim Singh.
The name of respondent No. 5 was also struck off on the ground that the estate of the deceased was no longer under Zapti. The appeal thus proceeded against respondent No. 2 Mst. Bachan Kanwar and respondent No, 4 Ganpat Singh. The appeal against Ganpat Singh was dismissed but against Mst. Rachan Kanwar it was allowed and the case was remanded to the trial court for decision on merits.
3. Learned counsel for the plaintiffs has urged that the appeal having been allowed against Mst. Bachan Kanwar, his clients are entitled to claim refund of the court-fees. It is contended that the case against Mst. Bachan Kanwar was dismissed by the trial court on a preliminary point and since this Court has remanded the case for decision on merits under Order 41, Rule 23 C. P. C., Section 13 of the Court-fees Act comes to the aid of the plaintiffs and they are entitled to claim refund of the court-fees.
4. Learned Assistant Government Advocate, on the other hand, has urged that the appeal having been dismissed against respondent No. 4 Ganpat Singh, the plaintiffs are not entitled to claim any refund. In support of his contention he has referred to In the matter of Bhagwanti, AIR 1917 All 314. In that case also the High Court had allowed the appeal against respondents 1 to 5 and the case was remanded under Order 41, Rule 23 C. P. C., as regards them. The appeal against one of the respondents, i.e., No. 6 was, however, dismissed. In those cicum-stances it was observed as follows:
'In my opinion the section refers to cases where a decree in favour of the respondents (i.e., all the respondents where there are more than one) is set aside, and the case is sent back 'for a second decision''. The proviso refers to ceses where the decision in favour of the respondents is set aside qua a portion only of the subject-matter of the suit, but in either case the decree appealed against must be set aside qua all the. respondents. Where the decree is left standing as to some of the respondents the decision so far as these respondents are concerned is left standing, and the appeal against them is dismissed. The Court in appeal in such cases does not set aside the decision of the case but affirms it, so far as these respondents are concerned. It sets aside only a part of the decision of the Court of first instance against some respondents only. The Court fee paid by the appellants was necessary and required in respect of so much of the appeal as has been dismissed. No additional fee was paid in respect of the appeal of the appellants in relation to the appeal against the other respondents which can be refunded now.'
With these observations the application for a certificate of refund was dismissed. It may be pointed out that this case was cited before a Full Bench of the same High Court in Mt. Kaulpati Kuar v. Kashi Prashad Singh, AIR 1934 All 106 & although it was distinguished since the facts of the next case were different, the view taken above was not dissented from.
I respectfully agree with the opinion taken in Bhagwanti's case, AIR 1917 All 314. The plaintiffs' appeal against respondent Ganpat Singh having been dismissed they are not entitled to claim refund of the court-fees. Learned counsel for the petitioners has very candidly conceded that he has not been able to lay his hands on any other authority to the contrary.
5. The application is, therefore, dismissed.