The right of appeal is a vested right that cannot be impaired by subsequent legislation.

CHAGLA, C.J.- These are two applications which claim a refund of court-fees paid on appeals filed on the Original Side of this Court and the refund is claimed under S.151, Civil P.C. on the ground that the higher court-fees were paid by mistake or inadvertence. It is also stated in these applications that the applicants were not liable in law to pay the higher court-fees which in fact they have paid.

2. Now, the suits from which these appeals arise were filed before 1-4-1954. In both cases the appeals are by the defendants and the court-fees which the appellants paid were the court-fees regulated by the amendment to the Court-fees Act which came into force on 1-4-1954. As it is well known, on that date the whole system of charging court-fees in the High Court on the Original Side was altered and instead of a fixed fee to be payable on the plaint ad valorem fees became leviable as in the districts.

The contention of the applicants is that at the date when the suits were filed the court-fee leviable was a fixed fee. At that date they had a vested right of appeal and that vested right has been impaired by a higher burden being thrown upon them for preferring an appeal to this Court. It is urged that if they had paid the court-fees on the basis of the fees payable when the suit was filed, the amount would have been much less than what it is today, and therefore in increasing the burden the right of appeal has been impaired. It is, therefore, urged that the Court-fees Act should not be given a retrospective effect and the amended Court-fees Act should only apply to appeals which are preferred in suits filed after 1-4-1954.

3. An identical question came up for consideration before me in Reference under S.5, Court-fees. Act AIR 1955 Bom 287 (A). That question arose on the Appellate Side, but the contentions there raised by the appellants and the manner in which the contentions were sought to be resisted are the same as the contentions raised here by the applicants and the manner in which those contentions have been sought to be resisted by the Advocate General on behalf of the State.

In that case a partition suit was filed in the district and at that time a certain fixed amount was payable on the plaint in a partition suit. After the decree was passed in the partition suit, the amended Court-fees Act of 1-4-1954, also increased the court-fees payable on a partition suit and when the appellant preferred the appeal here the new Act was in force and therefore the question that arose was whether the appellants were liable to pay increased court-fees on the appeal in accordance with the amendment or they were only liable to pay the court-fees which they would have been liable to pay if the court-fees had been payable under the old law.

It will be noticed that the question raised in that Civil Reference and the question raised in these applications is identical. In both cases the question was whether a retrospective effect should be given to the amended Court-fees Act and also whether the additional court-fees constituted a burden upon the appellant which impaired his right of appeal.

4. Now, we have heard the elaborate arguments of the Advocate General and we are of the opinion that the decision given in Reference under S.5, Court-fees Act (A) should stand. We will only refer to two or three new authorities that have been cited by the Advocate-General. It is unnecessary in our opinion to set out in full all the arguments and our views on those arguments because they are ail to be found in the judgment in Reference under S.5, Court-fees Act (A).

5. The first decision to which the Advocate-General has referred is a decision of this High Court in Civil Reference No.2 of 1886, (1886) Bom P.J. 25 (B). It is a judgment of Sir Charles Sargent and Mr. Justice Nanabhai Haridas and a judgment which undoubtedly is entitled to the highest respect. There a notification was issued in 1880 by which Government under S.35 remitted the fees payable on pl