Ramachandran Nair, J.

Heard learned counsel for the petitioner and learned counsel for the respondent.

2. An objection has been taken by the Registry regarding the court fee payable on the review petition and since the review petitioner maintained that the court fee paid is sufficient, the matter has been sent to the Bench for appropriate orders.

3. The review petition is filed against the judgment in R.F.A.No.87/2003. The appeal was rejected for non-payment of balance court fee. The appeal, R.F.A.No.87/2003 is one filed against the judgment and decree in O.S. No.225/2000 on the file of the Sub Court, Thalassery. The total court fee payable is Rs.28,940/- and one third court fee of Rs.9,646/- was remitted. After the appeal was admitted, the appellant had to pay the balance court fee. I.A.No.923/2003 was filed by the appellant to extend the time for remittance of balance court fee and extension was granted as per order dated 21.7.2003 in the above application, by two weeks. When the appeal came up for hearing on 21.8.2008, it was rejected for non compliance of the order to pay balance court fee. Presently, the review petition is filed seeking for review of the same by paying Rs.25/- as court fee.

4. The question is whether the court fee paid on the review petition is sufficient. Going by Article 5 of Schedule I, on an application for review of judgment, one half of the fee payable on the plaint or memorandum of appeal comprising the relief sought in the application for review, has to be remitted. Learned counsel for the petitioner submitted that the appellant has remitted one third of the court fee in the memorandum of appeal. The appeal was rejected not on the merits but only for default in payment of balance court fee. Therefore, the appeal is only dismissed for default. It is therefore submitted that it cannot be deemed to be a decree going by the definition of 'decree' in Section 2 (2) of the Code of Civil Procedure. No decision has been rendered by this court on the merits of the appeal. It is therefore submitted that the objection taken by the Registry is not correct. Reliance is placed on the decision of a Division Bench of this court in Thanappan v. Hassan Kappor (2003 (2) KLT 39) and a Full Bench decision of the Madras High Court in In Re N. Kayambu Pillai (AIR 1941 Madras 836).

5. We will examine the decisions relied upon by the petitioner at first. In Thanappan's case (2003 (2) KLT 39), the plaint was rejected by the trail court for non payment of balance court fee. The appeal was filed before this court challenging the said order. An objection was taken by the Registry to the effect that ad valorem court fee has to be paid. While examining the matter, the Division Bench held thus in para 3: "Plaint was rejected since the plaintiff could not raise sufficient funds to pay the court fee. In such situation, if the plaintiff is directed to pay ad valorem court fee, so as to consider his appeal, as to whether time could be granted to pay the ad valorem court fee in the suit, that will cause considerable prejudice to the party. Plaintiff will have to pay court fee again in the court below. Since the plaint was rejected under O.VII R.11(b) of the CPC, there is no adjudication as to the subject-matter of the suit. Hence, we are of the view that there is no justification in directing the parties to pay the ad valorem court fee. We overrule the objection of the registry and direct the registry to number the appeal."

6. The Full Bench of the Madras High Court in In re N. Kayambu Pillai's case (AIR 1941 Madras 836) considered the issue in a set of similar facts. Therein, the appeal was filed informa pauperis but at a later stage, on finding that the appellant was not a pauper, he was dispaupered and was directed to pay appropriate court fee on the memorandum of appeal and to furnish security for the costs of the respondent. The said order was not complied with and hence the appeal was dismissed. A petition was filed t