1. The petitioners brought two separate mortgage suits against the same mortgagor and these proceeded to the passing of final decrees. Against the preliminary decrees appeals were preferred to this Court and were in due course dismissed, but in the decrees dismissing them the time for redemption of the mortgaged property was not extended. Meanwhile on the footing of the original final decrees applications were made for sale of the mortgaged properties and were ordered accordingly. Soon after these applications were filed it appears that the attention of this Court was drawn by communication from the judgment-debtors to the fact that no time for redemption had been fixed in the appellate decrees and without notice to the decree-holders orders were thereupon passed extending the time in each case to six months from the date of the appellate decrees, which would come to 19th October 1928. The effect of these orders was of course that fresh final decrees would have had to be passed after the expiry of this period. It seems that no notice was given to the decree-holders that this extension of time had been made and in the applications for sale they filed copies of the final decrees as originally passed by the trial Court. In connexion with the sale they then applied for permission to bid for the mortgaged properties. In the counters filed by the judgment-debtors attention was directed to the need for fresh final decrees in consequence of the extension of time for redemption allowed by this Court. Nevertheless the Court allowed the execution to proceed, properties were sold and were purchased by the decree-holders. Following the ordinary procedure sums amounting to Rs. 651-9-0 and Rs. 667-3-0 respectively were deducted in each case as poundage from the amounts of the sale price. After the sales had taken place the judgment-debtors applied to have them set aside, ostensibly under Order 21, Rule 90, Civil P.C., on the ground that no valid final decrees were in existence at the time the sales were held. In the circumstances the decree-holders, seeing no doubt the weakness of their position, decided not to resist these applications and the Court duly set the sale aside. In the applications out of which these petitions arise refund of the amounts paid as poundage was asked for, and the question is whether the lower Court is right in deciding not to grant such refunds.
2. Inasmuch as there was no final decree under which sales in execution could be held there can, I think, be little doubt that the sales themselves were nullities and upon this footing the case has been argued. The consequences of setting aside sales under Order 21, Rule 89, 90 and 91, Civil P.C., are dealt with in Civil Rules of Practice Nos. 201 to 203, but these rules do not contemplate in any of these cases the making of a refund of the poundage on the part of the Government to a person by whom it has been paid or where it has been taken from the purchase money. There appears in fact to be no statutory power vested in the Court to enable it to make an order for the refund of poundage in any circumstances, and if such a power exists it must be derivable from the inherent power saved under Section 151, Civil P.C. I am asked to apply the analogy of the power to direct the refund of court-fees in oases other than those specifically authorised under Sections 13 to 15, Court-fees Act. There is a recent case, Thammayya Naidu v. Venkataramanamma A.I.R. 1932 Mad. 438, which decides that the Court has an inherent power to order refund of court-fees paid in excess when obvious injustices will be done if it were not repaid, and an array of authorities is cited for this position. The learned Judges add:
Of course what the High Court really does judicially in such a case is to decide judicially what is the proper court-fee 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.
3. The revenue authority designated in the Stamp Act, as the 'Chief Controlling Revenue Authority' is in this Presidency the Board of Revenue. But I have been unable to discover whether even the Board of Revenue has any general authority other than that conferred, for instance, by Section 45, Stamp Act, to order such a refund of poundage. The analogy of these court-fee cases is further weakened since an examination of them shows that they are all cases in which a mistake was made as to the amount of the court-fee payable, leading to an excess charge due to some arithmetical or similar error. The present case does not relate to a mistake in the amount paid as poundage because each sale fetched a certain amount of purchase money and poundage upon that amount was correctly calculated. It is only said that the sale ought not to have been held and therefore that the case is a fit one for the refund of the whole of the poundage. The nearest analogy to a refund in such circumstances would be perhaps one under Section 15, Court-fees Act, which permits a refund of a portion of the court-fee paid on an application for review where owing to the review the Court decides to rectify a mistake in the original order. But no case has been cited before me where a refund has been allowed upon proceedings on the ground that they were discovered to be void. Nor do I think that the analogy between court-fees and poundage is necessarily a very close one.
4. The nature of poundage has been discussed in Parvati Ammal v. Govindasami Pillai A.I.R. 1916 Mad. 290. It is really a portion of the purchase money deducted to discharge the expenses of the sale, and in England poundage is levied by the Sheriff, who of course is an agency more or less distinct from the Court, as remuneration for his services. In this country, as the officers of the Court conducting the sale are paid a fixed salary, a proportion of the purchase money is taken for the purchase of stamps. In effect the fee is a charge made against the decree-holder for the services he obtains from the Court in holding the sale. Once that sale has been held it is not clear whether any means exists for obtaining a refund of the fee. In these Civil Revision Petitions accordingly I do not feel prepared to say that in deciding not to grant the refund, although the learned Subordinate Judge was perhaps wrong in thinking that the cancellation of the sale was made under Order 21, Rule 90 he has actually refused to exercise his jurisdiction, because I am not satisfied that he indeed had jurisdiction to direct such a refund. The most that could be done in such a case would be to give a certificate to the party that the case was a fit one for a refund and leave it to the revenue authorities to comply with it. That is no more than a recommendation. But I am not at all clear that the revenue authorities would consider themselves to have authority to make such a refund. In these circumstances and although the case involves some hardship to the petitioners I do not think that I can interfere with the orders that have been passed. The respondents in these petitions are unrepresented but I thought it desirable that the Government Pleader should receive notice and I have accordingly heard his arguments. In C.R.P. No. 1441 of 1930, I am now informed that the petitioner is recently dead. It therefore abates. C.R.P. No. 700 of 1931 is dismissed but without costs.