This RSA is filed U/S. 100 of CPC against the Judgment 7 Decree Dtd. 24.3.2005 passed in R.A.No. 54/2000 on the file of the District Judge, davangere, dismissing the appeal and confirming the Judgment and decree Dtd. 20.9.1995 passed in OS No.197/1985 on the file of the Addl.Civil Judge 7 CJM, Shimoga.

Order On Misc. Cvl.2716/2009

This Miscellaneous application is filed under Section 16 of the Court Fees Act, 1870 seeking direction to the office of this Court to return to the appellants, the full Court fee paid by them in RSA No.1374/2005.

2. The facts leading to the present petition are as under:

(a) The respondent No.1 herein namely Honnali Taluk Agricultural Produce Cooperative Marketing Society Ltd., filed OS No.197/1985 on the file of the learned Addl. Civil Judge (Sr. Dn.) Shimoga against the appellants and also the respondent Nos.2 & 3 in this second appeal for recovery of a sum of Rs.50,053/-together with interest thereon. The said suit came to be decreed by the said Trial Court by its Judgment and decree dated 20.9.1995. Aggrieved by the said judgment and decree, the appellants filed RA No.54/2000 in the Court of the learned District Judge, Davanagere. Aggrieved by the same Judgment and decree, the respondent No.4 herein filed RA No.56/2000 before the same Appellate Court. By its common judgment dated 24.3.2005, the Appellate Court dismissed both the said appeals and thereby confirmed the judgment and decree dated 20.9.1995 passed in the said OS No. 197/1985. Aggrieved by the said common judgment of the Appellate Court, the appellants herein (the defendants in the original suit) filed RSA No.1374/2005.

(b) During the pendency of the said RSA, on 30.1.2009, the learned counsel for the appellants filed a memo stating that the matter involved in the said suit came to be ‘settled out of court’ between the appellants and the first respondent and therefore the appeal be ‘dismissed as settled out of Court’ and full court fees paid by the appellants in the said RSA be refunded to them. This Court, accepted the said compromise and dismissed the said RSA is appeal ‘as settled out of court’. While dismissing the appeal, the question “whether full court fees shall have to be refunded to the appellants?” was kept open on the ground that the answer to the said question will have implication on the finance of the State Government. Further, liberty was given to the appellants to file separate application seeking refund of full court fee with a direction to them to serve copy of the said application on the learned Government Advocate. Therefore, the appellants in the said RSA have filed the present Misc. application.

4. Today, I have heard the arguments of Sri R.A. Kulkarni, the learned counsel for the appellant – applicants and also Sri H. Hanumantharayappa, the learned Government Pleader on this Misc. Civil No.2716/2009.

5. Placing reliance on the decision of Division Bench of this Court in the case of A. Sreeramaiah Vs. The South Indian Bank Ltd., Bangalore and Another reported in ILR 2006 KAR 4032, the learned counsel for the appellant – applicants strongly contended that since the appellants got their dispute in the said RSA settled amicably with the first respondent therein namely Honnali Taluk Agricultural Produce Co-operative Marketing Society Ltd., without any intervention by this Court or any arbitrator/conciliator/mediator and got their said appeal dismissed ‘as settled out of Court’, they are entitled to refund of full court fees paid by them in the said RSA, as provided under Section 16 of the Court Fees Act, 1870. As against this, Sri H. Hanumantharayappa, the learned Government Pleader, strongly contended that the said decision of the Division Bench of this Court came to be rendered in respect of the appeal which was settled between the parties invoking the provisions of Section 89 of CPC and therefore, the Division Bench held in the said case that the appellants therein were entitled to refund of full court