Point of law :Recall of compromise decree - Application for recalling of a compromise decree has to be filed only before the Court that had recorded the compromise in terms of Order XXIII Rule 3(a) of CPC.

ORDER :

The petitioners in this petition call in question an order passed by the Trial Court in OS No.960/2019 rejecting the application filed by the petitioners seeking refund of Court fee of Rs.2,63,000/-which was paid while instituting the suit in OS No.960/2019.

2. Sans details, brief facts leading to the filing of present petition as borne out from the pleadings are as follows:

The 2nd respondent-defendant instituted a suit for specific performance before the Court of Principal Senior Civil Judge, Rural District, Bengaluru at Bengaluru in OS No.1680/2018. This suit ended in a compromise being recorded by the Court which ended in closure of the suit. The petitioners claiming that fraud was played by the plaintiff therein on the Court while recording the compromise decree which was without their consent, filed another suit in OS No.960/2019 seeking annulment of a compromise decree that was arrived at in OS No.1680/2018.

3. The trial Court, in OS No.960/2019, entertained the suit and also granted a temporary injunction against the second respondent herein who was the plaintiff in OS.No.1680/2018. An application under Order VII Rule 11 of CPC was filed by the plaintiff in OS NO.1680/2018 contending that under Order XXIII Rule 3(a) of CPC, an application ought to have been filed before the Court which had recorded the compromise and not a separate suit. It is then the petitioners withdrew the suit and filed an application before the very same Court which had recorded the compromise, seeking recalling of the said compromise decree.

4. After such withdrawal, the petitioners filed an application before the trial Court where they had instituted a suit in OS No.960/2019 seeking refund of Court fee, rejection of that application is what has driven the petitioners to this Court in this Civil Revision Petition.

5. Heard Sri.Kumbar Vasant Fakeerappa, learned counsel appearing for the petitioners and Smt. H.R.Anitha, learned High Court Government Pleader appearing for respondent No.1-State and perused the material on record.

6. Learned counsel appearing for the petitioners would submit that petitioners are entitled to a refund of Court fee, as they had by mistake and inadvertence paid the Court fee in OS No.960/2019 and would rely on Section 67 of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as the ‘Act’ for short) and would submit that the trial Court committed an error in declining to accept the application and refund the Court fee. He would place reliance on the following judgments:

(i) ILR 2015 KAR 4024 in the case of Smt.Lakshmamma and others Vs. Sri.T.H.Ramegowda and others

(ii) (2020)3 ALD(SC) 104 in the case of Trilokinath Singh Vs. Anirudh Singh and others

7. On the other hand, learned counsel representing the State would vehemently refute the contentions of the petitioners and submit that the petitioners are not entitled to any refund, as refund of Court fee is available only in terms of Section 66 of the Act and not Section 67 of the Act, as contended. In this regard, the learned counsel would place reliance on the judgment of Division Bench of this Court in the case of K.S.Periyaswamy Vs. State of Karnataka rendered in W.P.No.29493/2019.

8. I have given my anxious consideration to the respective submissions made by the aforesaid learned counsels and perused the material on record. In furtherance whereof, the issue that falls for my consideration is:

‘Whether the petitioners who withdrew the suit are entitled to a refund of court fee in terms of the Act?’

9. The facts with regard to the suit being instituted by the petitioners who were defendants in earlier suit and the plaintiffs in the next suit need not be reiterated. Chapter 7 of the Act deals with the refund of Court fees. In terms of Section 66 of the Act, refund of Court fee is available to a litigant only in the circumstances narrated in Section 66 of the Act. Section 66 of the Act reads as follows:

“66. Refund on settlement before hearing. –