1. This is an application for refund of Court-fee paid on memorandum of appeal which was not properly stamped and was returned for payment of deficit Court-fee and which the appellant did not re-present as he found no necessity for it.
2. Refund is asked for under inherent powers.
3. Two decisions have now to be considered. In Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad.1028, where the appellant in an appeal which had been registered withdrew the appeal as having become unnecessary refund of Court-fee paid on the appeal was held inadmissible. The decision in Kappini Gounder, In re : AIR1938Mad67 , refusing refund also related to a case where the appeal was withdrawn long after it was registered and admitted.
4. In the present case the appeal however has not been registered and taken on file and could not also be registered as it was defective.
5. The next decision in Rachakonda Nagaratnam, In re (1950) 1 M.L.J. 222, related to a case where as in this case the appeal was not registered. It was held following an unreported decision in C.M.P. Nos. 4439 to 4442 of 1941 relating to a similar case that refund could not be ordered but a certificate was granted that the appeal was not numbered or heard and that the memorandum of appeal which was directed to be returned to the party was stamped with a Court-fee of Rs. 149-15-0 leaving it to the appellant to apply to the Revenue authorities for an ex gratia refund as in the case of spoilt stamp papers.
6. To my mind this procedure may be followed in this case also. The fact that it is not shown that the non-prosecution of the appeal here is not the result of compromise or settlement as in that case does not make any difference. If anything, refund is less justifiable when the appellant has got something by settlement by using the unfiled appeal as a means to extract some concession. The fact that the Legislature has thought fit to enact a provision of refund in the new Act in such cases indicated that in the opinion of the framers of the law, refund in such cases is just and equitable (see Section 66(1) of the New Court Fees Act).
7. Therefore grant a certificate on the same lines as in Raehakonda Nagaratnam, In re (1950) 1 M.L.J. 222.