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Girish Chandra Mali and anr. Vs. Girish Chandra Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal450,137Ind.Cas.791
AppellantGirish Chandra Mali and anr.
RespondentGirish Chandra Dutta and ors.
Excerpt:
- .....question, but in allowing to the defendants costs did not include in the decree, the excess court-fees paid by the defendants in the lower appellate court. thereafter the defendants applied before the lower appellate court for refund of the excess court-fee. the learned additional district judge was however of opinion that he could not interfere with the order of (his predecessor, demanding the excess court-fees except on review which of course could not be granted since there was an appeal to this court and a long time had elapsed. it is a matter in which the government has profited by she erroneous order of the court below. in our opinion, no consideration can stand in the way of justice being done to a subject.2. we accordingly make this rule absolute and order that the excess.....
Judgment:

1. It appears that the plaintiff in this case brought a suit for ejectment on a plaint on which he paid the necessary court-fees under Section 7, Clause 11 (cc), Court-fees Act. He obtained a decree and the defendants appealed. The appellate Court relying upon a certain decision of this Court which has since been dissented from and is no longer good law held that the memorandum of appeal presented by the defendants as well as the plaint should be stamped with ad valorem court-fees. The result of the order was that the defendants had to pay in court-fees, Rupees 193-8-0 in excess of what was necessary under Section 7, Clause 11 (cc). The appeal was allowed and the plaintiff preferred a second appeal to this Court on the court-fee which he had paid originally on the plaint. That appeal was dismissed. But at the time of the dismissal, the question was raised as to which party would be liable for Rs. 193-8-0 paid by the defendants in excess under the erroneous view of the lower appellate Court. The learned Judges did not decide this question, but in allowing to the defendants costs did not include in the decree, the excess court-fees paid by the defendants in the lower appellate Court. Thereafter the defendants applied before the lower appellate Court for refund of the excess court-fee. The learned Additional District Judge was however of opinion that he could not interfere with the order of (his predecessor, demanding the excess court-fees except on review which of course could not be granted since there was an appeal to this Court and a long time had elapsed. It is a matter in which the Government has profited by she erroneous order of the Court below. In our opinion, no consideration can stand in the way of justice being done to a subject.

2. We accordingly make this Rule absolute and order that the excess court-fee Rs. 193-8-0 paid by the defendants on the memorandum of appeal in the Court below be refunded to them.

3. We direct that the District Judge of Tipperah do issue the necessary certificate to enable the petitioners to obtain a refund of the excess court-fee, Rupees 193-8-0.


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