1. I agree with the opinion of my learned brother. I see no valid reason why the decision of this Court in 1872 to be found in 7 M.H.C.R. (Rulings, Appendix, p.1) which has stood since 1872 should be dissented from. The, interpretation put upon the Articles in question in Nandi Lal A grant v. Jogendra Chandra Dutta (1923) 28 CWN 403. seems to me to work an obvious injustice. This Court's Interpretation of the rule seems also to have found acceptance in Bombay In re Manohar G. Tambekar I L R (1879) B 26. I also agree with my learned brother's remarks on the question of mesne profits.
2. The fee levied by the office is right.
The point for decision in this reference is what is the proper stamp fee to be levied on the review application in C. M P. No. 140 of 1925? This was an application for review of a judgment in second appeal. The judgment in that appeal was passed before the increase in the Court-fees under the amended Court Fees Act of 1922 came into force. The review application was put in after that amended Act had been passed. The first question is whether the rate of fee to be levied is under the old Act or under the amended Act. Under Schedule I, Articles 4 and 5, the Court-fee for application for review of judgment Is either the whole or half of 'the fee leviable on the plaint or memorandum of appeal' and the decision turns on the interpretation of that phrase.
3. It may be construed in at least four different ways
(1) as the fee actually levied on the plaint or memorandum of appeal when admitted;
(2) as the proper fee to be levied on the plaint or memorandum of appeal at the time of presentation thereof;
(3) as the fee which would have been properly levied on the plaint or memorandum of appeal if that had been put in at the time of the presentation of the application for review; and
(4) as the proper fee to be levied if the applicant for review were then putting in a plaint or memorandum of appeal for the same relief.
4. As to 1 it seems clear that it is not a proper construction of the phrase. In the case of a suit or appeal in forma pauperis no fee is actually levied on admission. Again the Court of appeal may in certain circumstances increase or decrease the fee actually paid, and it is clearly more reasonable to suppose that the Legislature meant the fee which was the proper fee to be levied and not the fee actually levied.
5. As to 2, an adherence to this construction would mean that, even though the review application only related to a small portion of the relief asked for in the plaint or memo of appeal, the applicant for review would have to pay the full stamp paid on the plaint or memorandum of appeal. This again seems to me hardly acceptable. This view, however, has found favour in the Calcutta High Court see Nandi Lal A gram v. Jogendra Chandra Dutta (1923) 28 C W N 403 which refuses to follow an earlier decision of this Court, 7 M.H.C.R., Appendix, p. 1, to which I shall allude later on. Such a construction would in this Court at least make an application for review much more expensive than an appeal.
6. As to 3, it would imply that where an applicant for review is the defendant and the appeals have been by, the plaintiff all through, and the review application is thus the first motion of his for any relief, his application would have to be valued not on any sums paid by himself for the relief sought for by him but on the stamp paid by the opposite party for the relief sought for by it, which may obviously have no sort of relation to the relief which the review applicant wants. This again seems hardly a reasonable construction of the phrase.
7. Construction No. 4 implies that the applicant pays not for the relief sought for by any one else over which he has no control but on the relief sought by himself, and he thus pays naturally and equitably on that relief as if it were a plaint or memorandum of appeal by himself, for that relief. This appears to be the most reasonable interpretation of the phrase and it is the interpretation put upon the phrase by this Court so long ago as 1872 (see 7 M.H.C.R., Appendix, p.1), and this interpretation has been practically followed ever since by this Court. The Bombay High Court has taken a similar view in In re Manohar G. Tambekar I L R (1879) B 26. It follows therefore that the Court-fee will be the Court-fee payable as if, on the date when the review application was put in, the applicant was filing a plaint or memorandum of appeal for the same relief, i.e., in the present case the Court-fee leviable will be the Court-fee which falls to be levied under the amended Court Fees Act calculated as if the application for review were a plaint or memorandum of appeal for the relief sought for.
8. The next point is whether Court-fee must be paid on the mesne profits up to the date of the review application. Now it is plain that in this matter the review application has to be considered as if it were a memorandum of appeal and on such a memorandum of appeal there is no doubt that the applicant who seeks to be relieved from the payment of such mesne profits must pay Court-fee on such mesne profits up to the date of his appeal memorandum see Brahmayya v. Lakshminarasimham I L R (1892) B 26 and Balarama Naidu v. Sangan Naidu I L R (1921) M 280. When the mesne profits have been ascertained the Court-fee is payable on the ascertained rate. Where the mesne profits have not been ascertained the fee is chargeable on the valuation of mesne profits ' in the plaint;. The petitioner therefore must pay on the mesne profits which in this case are payable on the ascertained rate calculated up to the date of the application.
9. The last point is at what rate, the old rate or the new rate, must the fee,on these mesne profits be levied. The answer to point (1) answers this point also. It must be paid as if the applicant was now putting in a memorandum of appeal and he must therefore pay according to the new scale.
10. The Court-fee levied by the office is quite right.