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Achammal and anr. Vs. N. Krishna Naidu and ors. (No. 2) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1969)1MLJ127
AppellantAchammal and anr.
RespondentN. Krishna Naidu and ors. (No. 2)
Excerpt:
- .....with the office that section 67 does not provide for refund of court-fee paid on the memorandum of appeal filed in this court against an order of remand. sub-section (1). of section 67 applies only to a case where a suit is remanded in appeal for fresh disposal by the trial court and will not apply. it is, therefore, enough to consider sub-section (2) which reads thus:where an appeal is remanded in second appeal or letters patent appeal for a fresh decision by the lower appellate court, the high court remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of second appeal if the remand is in second appeal, and of the full amount of fee paid on the memorandum of second appeal and the memorandum of letters patent appeal if the remand is.....
Judgment:
ORDER

K.S. Venkataraman, J.

1. C.M.A. No. 88 of 1964 was an appeal filed under Order 43, Rule 1(a), Civil Procedure Code, against the order of the learned District Judge of Chingleput in A.S. No. 179 of 1963 on his file, remanding the suit O.S. No. 32 of 1962 on the file of the District Munsif of Tiruvallur, for fresh disposal. By judgment dated 23rd June, 1967, in C.M.A. No. 88 of 1964, I held that the order of remand was not justified and directed the District Judge to dispose of the appeal A.S. No. 179 of 1963, according to law. I also gave a direction that the Court-fee paid on the memorandum of appeal in C.M.A. No. 88 of 1964 might be refunded. The office has now pointed out that there is no provision in Section 67 of the Madras Court-Fees Act XIV of 1955 for refund of Court-fee under such circumstances. A similar order was passed directing refund of Court-fee on the memorandum of appeal in C.M.A. No. 369 of 1964. I agree with the office that Section 67 does not provide for refund of Court-fee paid on the memorandum of appeal filed in this Court against an order of remand. Sub-section (1). of Section 67 applies only to a case where a suit is remanded in appeal for fresh disposal by the trial Court and will not apply. It is, therefore, enough to consider Sub-section (2) which reads thus:

Where an appeal is remanded in second appeal or Letters Patent Appeal for a fresh decision by the lower appellate Court, the High Court remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of second appeal if the remand is in second appeal, and of the full amount of fee paid on the memorandum of second appeal and the Memorandum of Letters Patent Appeal if the remand is in Letters Patent Appeal.

2. It will be seen that this provision applies in terms only to a case where the appeal is remanded in second appeal or Letters Patent Appeal for a fresh decision by the lower appellate Court. Here the appeal A.S. No. 179 of 1963 (similarly the appeal concerned in C.M.A. No. 369 of 1964) was remanded not in second appeal or Letters Patent Appeal but in an appeal filed in this Court under Order 43, Rule 1 (a) of the Civil Procedure Code. The provision for filing a second appeal in this Court is Section 96 of the Civil Procedure Code and the Letters Patent, with leave of the Judge disposing of the second appeal. Section 67 (2) will apply only to such cases. It is true that the appeal filed under Order 43, rule I (u) may be said to be akin to a second appeal, but in matter of refund of Court-fee, it is not permissible to order refund on the basis of such order. There must be an express provision in the fiscal statute granting refund. There is no such provision in the case of an appeal filed in this Court under Order 43, Rule 1 (a), Civil Procedure Code. I may add that the learned Counsel for the appellant in each case was not able to dispute this proposition. Accordingly, the direction in each for refund of the Court-fee paid on the memorandum of appeal filed in this Court will be deleted.


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