The court's decision emphasized that the jurisdiction of the Court in ordering refund of court fee emanates directly from the Court Fees Act, 1870, and such powers cannot be exercised except in rare circumstances such as where the court fee has been assessed or collected illegally or erroneously.

Dhirendra Mishra, J

1) By this order, the appellants' applications i.e. I.A. No.5, application for withdrawal of the appeal with liberty to prefer civil revision against the impugned judgment & decree; I.A. No.6, application for refund of court-fee affixed in the first appeal & I.A. No.7, application for permission to return certified copy of the impugned judgment & decree, are being disposed of. 2) This first appeal is directed against the judgment and decree dated 11.5.2007 passed in Civil Suit No.38-A/2007 whereby the learned 3rd Additional District Judge, Bilaspur has decreed the suit of the plaintiff/respondent No.1 herein with cost and directed the defendants/ appellants herein to restore vacant possession of the suit land/ house & hotel to the plaintiff within a period of one month failing which the plaintiff would be entitled for damages @ Rs.2,000/- per month.

3) The respondent No.1/plaintiff filed the above suit under Section 6 of the Specific Relief Act, 1963 (for short `Act of 1963') for restoration of possession with specific averments that she was dispossessed from the suit property without following due process of law on 14.5.1997 and the trial court by impugned judgment and decree, decreed the suit of the plaintiff, as described above. The appellants have preferred this regular first appeal against the said judgment and decree under Section 96 of the Code of Civil Procedure, 1908 (for short `CPC') and have also affixed the court fee of Rs.89,800/- in the memo of appeal. This Court vide order dated 30.8.2007 stayed the effect and operation of the impugned judgment & decree on appellants' depositing money part of the decree with certain conditions. The application for vacating stay by the respondent No.1/ plaintiff was also rejected on 5.2.2008 and the matter was fixed for final hearing. Thereafter, respondent No.1 vide her application dated 10.3.2008 (I.A. No.2) prayed for dismissal of the appeal itself on the ground that as per provisions of Section 6 (3) of the Act of 1963 no appeal lies against the order or decree passed in a suit instituted under Section 6 of the Act of 1963. Confronted with the above preliminary objection, the appellants by the aforesaid applications have prayed for withdrawal of the appeal with liberty to file civil revision and also prayed for refund of court-fee affixed by the appellants in the memo of appeal.

4) The short question for deciding the above applications is whether the appellants can be permitted to withdraw first appeal with liberty to file civil revision against the impugned judgment and decree and whether while permitting the appellants to withdraw the appeal, the court- fee affixed by them along with memo of appeal can also be refunded.

5) So far as the question of permission to withdraw the appeal with liberty to file civil revision is concerned, taking into consideration the provisions of Section 6 (3) of the Act of 1963, the instant appeal is not maintainable and in these circumstances, there is no impediment in permitting the appellants to withdraw this appeal with liberty to avail remedies available under the law including filing of civil revision against the impugned judgment and decree in accordance with law.

6) The only question that remains to be decided is whether the Appellate Court is empowered to grant to the appellants a certificate authorizing them to receive back the full amount of court-fee paid by them on the memorandum of appeal.

7) Considering the different views taken by the various High Courts in the matter, the Bar was requested to address on this legal issue and accordingly, Mr. Manindra Shrivastava, Senior Advocate, Mr. Sanjay S Agarwal & Mr. Sanjay K Agarwal, Advocates addressed the Court at length and also submitted written submissions.

8) Mr. Ratnesh Agarwal & Mr. Wankhede, Advocates for the appellants vehemently contended that the appellants instead of preferring civil revision against the impugned judgment and decree inadvertently filed the in