( 1 ) THE only question that arises for consideration is whether the appellant is entitled to refund of 50% of the amount of court fee paid by her on the memo of appeal in terms of Section 66 of Karnataka court fees and suits valuation Act, 1958.

( 2 ) AGGRIEVED by a decree granted in favour of the respondent by the city civil court, Bangalore, the appellant preferred the present appeal, in which by an interim order dated 10th of august, 1998, she was directed to deposit a sum of Rs. 2,25,000/- within three months to be paid to the decree-holder subject to the condition that in case the appeal succeeded, the amount so received by him shall be repayable with inter- est at the rate of 12% per annum. The appellant, it appears did not deposit the amount in question with the result the execution proceed ings instituted before the court below continued and were concluded in terms of a settlement between the parties upon payment by the appel lant of a sum of Rs. 2,85,000/- in full and final satisfaction of the decree holders claim under the decree passed in his favour. The executing court by its order dated 27th of december, 1999 closed the proceedings accordingly. A memo was thereafter filed before this court seeking with drawal of the appeal and a direction for refund of 50% of the court feel paid on the same.

( 3 ) MR. Navadgi, learned counsel for the appellant, argued that the matter having been settled before commencement of the hearing of the appeal, the appellant was entitled to the refund claimed under Section 66 (c) of the Karnataka Court Fees and Suits Valuation Act, 1958. In support he placed reliance upon a single bench decision of this court in Abdul Haleem v Kalique Ahmed (deceased) by L. rs.

( 4 ) SECTION 66 of the act aforementioned provided for refund of the court fee on settlement before hearing and runs thus. "66. Refund on settlement before hearing. Whenever by agreement of parties. (a) any suit is dismissed as settled out of court before any evidence has been recorded on the merits of claim; or (b) any suit is compromised ending in a compromise decree before any evidence has been recorded on the merits of the claim; or (c) any appeal is disposed of before the commencement of hearing of such appeal; half the amount of all fees paid in respect of the claim or claims in the suit or appeal shall be ordered by the court to be refunded to the parties by whom the same have been respectively paid".

( 5 ) IT is evident from a plain reading of the above that two conditions must be satisfied before a refund of court fee may be claimed on an appeal in terms of clause (c) of Section 66. Firstly, the appeal must be disposed of by agreement of the parties and secondly such disposal must come before the commencement of hearing of such appeal. So far as the disposal of the appeal by agreement of the parties is concerned, the same does not necessarily imply that the respondent must either be present or expressly grant his consent to the disposal of the appeal. Disposal of an appeal by reason of an unconditional withdrawal of the same even before the respondent is notified or appears must in the scheme of Section 66 be deemed to be a disposal with the agreement of the parties. That is so because while the respondent may have a right to object to the modification of the decree passed in his favour he cannot possibly oppose a request for unconditional withdrawal of the appeal. This is true even where the respondent has been notified and has entered appearance. A 'disposal by reason of withdrawal of the appeal must therefore be construed as a disposal with the agreement of the parties. In the instant case also, the withdrawal is unconditional and without affecting the decree in any manner. As a matter of fact, the respondent has not entered appearance in the appeal so far. In the circumstances, the disposal of the appeal as withdrawn must for purposes of Section 66 be deemed to be a disposal with the agreement of the parties.

( 6 ) TH

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