JUDGMENT

CHINNAPPA REDDY, J.:— A second appeal under Section 100 of the Code of Civil Procedure 1908 was allowed by the Allahabad High Court and the matter was remanded to the Lower Appellate Court for fresh disposal in accordance with law. The order of remand was made under the provisions of Order XLI, Rule 23 of the Civil Procedure Code 1908, as amended by the Allahabad High Court. The successful appellant before the High Court filed an application under Section 13 of the Court Fees Act, 1870 claiming a refund of the Court fee paid in the Second Appeal. The application came before G.C. Mathur, J., who entertained a doubt whether Section 13 of the Court Fees Act applied to a case of remand under the provisions of Order XLI Rule 23, Civil Procedure Code as amended by the High Court and referred the question for the consideration of a Full Bench. Thereafter the application was heard by the Full Bench* consisting of Jagdish Sahai, Pathak and Kirty, JJ. Pathak and Kirty JJ. took the view that refund of Court-fee could be ordered under Section 13 of the Court Fees Act, even where the remand was made under the amended provisions of Order XLI Rule 23. Jagdish Sahai, J. dissented. In accordance with the opinion of the majority, the court fees paid by the appellant before the High Court was directed to be refunded. The State of U.P. obtained a certificate under Article 133 (1) (c) of the Constitution and has preferred this appeal.

* Reported in Air 1969 All 142 (FB).

2. Section 13 of the Court-fees Act. 1870, in so far as it is material is as follows:

"If an appeal or a plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure is ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in S. 351 of the same Code for a second decision of a lower court, the lower court shall grant to the appellant a certificate, authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal."Section 13, thus speaks of a suit remanded in appeal on any of the grounds mentioned in Section 351 of the same Code i.e. the Code of Civil Procedure which was then in force. Section 351 of the Code of Civil Procedure 1859 provided for the remand of a case by the appellate court to the lower court for a decision on the merits of the case, where "the lower court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact which shall appear to the appellate court essential to the rights of the parties", if the decision on the preliminery point was reversed by the appellate court. The Code of 1859 was repealed and replaced by the Code of 1877. Section 562 of the 1877 Code was substantially in the same terms as Section 351 of the 1859 Code. The Code of 1882 was repealed and replaced by the Code of Civil Procedure 1908. Order XLI, Rule 23 of the 1908 Code also provided for the remand of a case to the lower court by the appellate court where the suit had been disposed of upon a preliminary point and the decision of such preliminary point was reversed in appeal by the appellate court. In exercise of the powers vested in it under Section 122 of the Code of Civil Procedure 1908, the Allahabad High Court amended the provision of Order XLI, Rule 23 so as to provide for the remand of a case by the appellate court to the trial court, not only when the suit had been decided upon a preliminary point and the decision was reversed in appeal, but also whenever the appellate court considered it necessary in the interest of justice. The question for consideration in this appeal is whether the power to grant refund of court-fees under Section 13 of the Court Fees Act 1870 was attracted to a case where the appellate court remanded the case to the lower court in the interest of justice as provided by the provisions of Order XLI, Rule 23 as amended by the High Court of Allahabad.

3. In order to answer the question a reference