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The Province of Madras Represented by the Collector of Nellore Vs. Kalavakuru Audemma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in(1949)1MLJ179
AppellantThe Province of Madras Represented by the Collector of Nellore
RespondentKalavakuru Audemma and ors.
Cases ReferredIn Thammayya Naidu v. Venkataramanamma
Excerpt:
- - outside these cases we are not satisfied that we have authority to direct a refund......items of property in a court auction on 26th september, 1941, and affixed the proper stamp on the sale certificate. that sale was subsequently set aside on 3rd february, 1945, because of some material irregularity in the conduct of the sale. the petitioner (auction-purchaser) then filed an application on 20th december, 1945, for a refund of the value of the stamp. the government pleader apparently opposed the application; but the court passed the following order:in the circumstances the court has inherent power to order refund of the sale certificate stamp which has to be deposited along with the purchase money under the rules. refund. the government has filed this civil revision petition against the order, though the amount ordered to be refunded is small; because the order involves a.....
Judgment:

Horwill, J.

1. The petitioner in Court below purchased certain items of property in a Court auction on 26th September, 1941, and affixed the proper stamp on the sale certificate. That sale was subsequently set aside on 3rd February, 1945, because of some material irregularity in the conduct of the sale. The petitioner (auction-purchaser) then filed an application on 20th December, 1945, for a refund of the value of the stamp. The Government Pleader apparently opposed the application; but the Court passed the following Order:

In the circumstances the Court has inherent power to order refund of the sale certificate stamp which has to be deposited along with the purchase money under the rules. Refund.

The Government has filed this Civil Revision Petition against the order, though the amount ordered to be refunded is small; because the order involves a question of principle. The party has not appeared either in person or by advocate to oppose the Revision Petition; but she was fortunate enough to have her case argued by Mr. B.V. Viswanatha Aiyar, the learned author of a work on the Court-Fees Act, as an amicus curia. He has done so very thoroughly and I am grateful for the assistance that he has given the Court.

2. Mr. Viswanatha Ayyar has argued that the Court has jurisdiction under Section 151 of the Code of Civil Procedure to pass such orders as it thinks necessary to render justice to all the parties before it and that where the facts of a case show that a Court-fee paid ought to be refunded, it can issue a certificate, although, unlike an order of refund under Sections 13 to 15 of the Court-Fees Act and Section 49 of the Stamp Act, it should merely certify that a Court-fee or other stamp duty has been paid which ought not to have been paid, leaving it to the revenue authorities to pay or not to pay as they think proper. He cited three cases from Madras where the inherent power of the Court to do this has been emphasised. In Thammayya Naidu v. Venkataramanamma : (1932)62MLJ541 an ad valorem Court-fee had been paid; and the Court held that it would have sufficed if Court-fee had been paid for a mere declaration. Dealing with the question whether the Court had power to issue a certificate, the learned Judges said:

It would be unreasonable and unjust for the High Court not to assist a party to recover excess Court-fee erroneously paid under its own order or under the orders of Courts subordinate to it. Of course what the High Court really does judicially in such a case is to decide judicially what is the proper Court-tee and then issue a certificate to the party that excess Court-fee has been levied. It still lies with the revenue authorities to decide whether or not they will refund the excess in the circumstances.

The other cases cited were Narayana Reddiar, In re : AIR1942Mad316 and Vedaranyaswami Devasthanam, In re : AIR1942Mad464 , decisions of a single Judge, fn the former case a person by mistake paid the full Court-fee on a review application before the petition itself was admitted, whereas the rules made the payment necessary only after the petition was admitted. The application for review was dismissed; and the petitioner thereupon asked for a refund of the Court-fee. The learned Judge discussed the authorities on the point and held that the Court had an inherent power to do justice to the party and where Court-fee had been paid at a time when it was not necessary that it should have been paid, it was the duty of the Court to assist the applicant to recover what had been paid by mistake. The question however came up before a Bench of this Court in Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad. 1028 and the learned Judges found it necessary to consider under what circumstances the Court could order a refund of the stamp duty. They came to the conclusion that the Court could order a refund only, (1) where the Court-Fees Act applies; (2) where there is an excess payment by mistake; or (3) where, on account of the mistake of a Court, a party has been compelled to pay Court-fees either wholly or in part. The learned Judges then went on to add:

Outside these cases we are not satisfied that we have authority to direct a refund.

The cases above quoted by Mr. B.V. Viswanatha Aiyar, would come within the grounds set out by the learned Judges as being those in which a refund of Court-fee could be granted. No authority has been cited to indicate that a refund can be granted in cases lying beyond the three categories referred to in Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad. 1028. In C.M.P. Nos. 4439-42 of 1941 the petitioner paid Rs. 909-13-0 as Court-fee. When they were directed to pay a further Rs. 2,772-7-0, they withdrew their appeals and asked for a refund of the Rs. 909-13-0. The learned Chief Justice and Happell, J., quoted Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad. 1028, with approval and held that refund of Court-fee could be granted in no other cases.

3. In 1935, this High Court addressed a letter to the Secretary of the Board of Revenue, pointing out that there was no provision for granting a refund of stamp duty on sale certificates if the sale had been set aside long after the sale certificate had been issued and registered. The matter was thereupon considered by the1Government and Standing Order No. 92 was passed amending the Madras Stamp Manual. The Order was as follows:

In the case of certificates of sale issued by Courts which are subsequently set aside, the auction-purchaser may be allowed refund of the value of the stamps on the certificates even though the sale might: have been set aside long after the sale certificate had been issued and registered, provided that the application for the refund is made to the Collector within six months of the date on which the sale has been set aside.

It is thus seen that a definite rule was laid down by the Government allowing a refund of stamp duty only if an application was made within six months of the setting-aside of the sale. That being so, no Court can have an inherent power to direct a refund of stamp duty when the application is made beyond the period fixed for the granting of a refund.

4. The petition is allowed, the order of the. lower Court set aside, and the application for refund dismissed. As this matter was brought to this Court only to have it made clear that in such circumstances an applicant was not entitled to a refund of stamp duty, no order as to costs is necessary.


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