V. Sethuraman, J.
1. This civil revision petition is to revise the order of the learned Subordinate Judge, Nagapattinam, in I.A. No. 735 of 1975 in O.S. No. 6 of 1972, dated 25th September, 1975. The plaintiff is the petitioner herein and was also the applicant in the Court below. He filed a suit against the defendant for recovery of a sum at Rs. 86,000 and odd and paid court-fee to the tune of Rs. 6,455.25 under Section 22 of the Court-fees Act. He obtained an ex parte decree. In pursuance of the said decree, E.P. No. 67 of 1974 was filed and there was a realisation of Rs. 19,855. However, the ex parte decree came to be set aside by an order in I.A. No. 613 of 1974, dated 16th April, 1975. After setting aside the ex parte decree, when the case came up for hearing, it was dismissed as settled out at Court on 28th April, 1975. The petitioner prayed for a refund of the Court-fee paid in accordance with the provisions of Section 69 of the Court-Fees and Suits Valuation Act. The Court below has held that the petitioner was not entitled to the refund of the court-fee, and that is how the civil revision petition came to be filed in this Court by the plaintiff.
2. The only question is whether the petitioner is entitled to refund of the court-fee paid under Section 69 of the Act. Section 69 of the Act is as 'follows:
Whenever any suit 19 dismissed as settled out of Court before any evidence has been recorded on the merits of the claim, half the amount of all 'fees paid in respect of the claim or claims in the suit shall be) ordered by the Court to be refunded to the parties by whom the same have been respectively paid.
There is an explanation to this provision and it is unnecessary for our present purpose to extract the same. The case of the petitioner before the Court below was, and here is, that this is a case which has been settled out of Court before evidence had been recorded on the merits of the claim as contemplated by the provision extracted above, and that therefore, he is entitled to a refund of the court-fee paid. The Court below has taken the view that as there has been a recovery of a sum of Rs. 19,855 in execution, the petitioner is not entitled to the refund under Section 69. The correctness of this view is to be considered now.
3. In Eswarwnurthi v. Ramakrishna : (1974)2MLJ137 . N. S. Ramaswami, J., considered a somewhat similar question. In that case also, there was an ex parte decree and before passing the ex parte decree, some evidence had also been recorded. After referring to certain decisions, the learned Judge observed as follows:
All these decisions proceed on the footing that the ex parte evidence should be treated as non est once the ex parte decree is set aside. I respectfully agree with that view. If the ex parte decree is set aside, the parties would be in the same position as they were before recording of ex parte evidence. If the suit is settled out of Court after the ex parte decree is set aside, such settlement is clearly before 'any evidence has been recorded', for, the ex parte evidence originally recorded had been wiped out, as it were, by the setting aside of the proceeding. When the settlement was reported there was no evidence on record. That means that Section 69 of the Court-fees Act is applicable to this case and the plaintiff is entitled to refund of half the court-fee.
The only way in which this decision is sought to be distinguished by the respondent is that there has been an execution in E.P. No. 67 of 1974, as a result of which a sum of Rs. 19,855 was recovered and that this makes a vital change so that the principle of that decision cannot be applied here. I do not consider that there is anything in principle which renders the principle of that decision inapplicable to the facts of this case. As a result of the setting aside of the ex parte decree, the realisation in execution would lose its validity. If necessary, the petitioner might have been ordered to bring back the said amount to the credit of the suit as there can be no realisation in execution of a decree which has ceased to exist. The fact that there has been execution of the decree would be of no consequence, and after the decree was set aside the parties would be restored to the position which they occupied prior to the passing of the decree. I consider that on the facts before this Court the petitioner has clearly made out a case for a refund of the court-fee in accordance with the provisions of Section 69 of the Act, and the refund is accordingly ordered. The civil revision petition is allowed. There will be no order as to costs.