1. This is a petition filed by the cross objector in cross objection No: 77/2008. The cross objection was dismissed at the stage of admission on 25.5.2010. According to the petitioner herein, at the time of filing the cross objections he had paid the entire court fee that was payable on the cross objections, by mistake. Since the cross objections were dismissed at the stage of admission, as per law it was necessary for him to have paid only 1/3 rd of the court fee payable. Therefore, he claims that he is entitled to refund of the excess court fee paid.

2. According to Adv. Jacob P. Alex the entire court fee was paid by mistake. Since the cross objections was dismissed at the stage of admission the petitioner is entitled to have the excess court fee paid refunded. According to the counsel, as per Section 52 of the Kerala Court Fees and Suits Valuation Act, 1959 ('Court Fee Act' for short) the court fee payable at the time of filing an appeal is only 1/3rd of the actual court fee. The remainder is to be paid only if the appeal is admitted. Since the stage for payment of the balance court fee had not arisen in the present case, it is contended that the claim of the petitioner is justified. Reliance is also placed on the decision of this Court in Ayisha Beevi v. District Collector [2002 (3) KLT 421] to contend that, the petitioner is entitled to the relief that is sought.

3. The learned Govt. Pleader opposes the contentions of the counsel for the petitioner. Objections have also been filed. It is contended that, the permission to file an appeal by paying only 1 /3 rd of the court fee payable is not available to a person who prefers a cross objection. Reliance is placed on that was made in Section 4A of the Act. It is also contended that the payment the present case was not as a result of any mistake as contended by the petitioner.

4. Heard. As already noticed above, the cross objections preferred by the petitioner in the present case did not cross the stage of admission. The same was dismissed at the stage of admission on 25.5.2010. According to the petitioner, he had made payment of the entire court fee due on the cross objections, by mistake. The first contention of the learned Govt. Pleader who opposes the claim of the petitioner is that the expression 'appeal' does not include cross objections. The said contention cannot be sustained for the reason that Section 3 of the Act defines an appeal to include a cross objection also. The said provision is reproduced hereunder:-

"3. Definitions.—In this Act, unless the context otherwise requires;—

(i) Appeal.—"appeal" includes a cross- objection;"

5. Section 52 of the Act provides that, the court fee payable on an appeal shall be the same as the fee that will be payable in the court of first instance on the subject matter of the appeal. The second proviso to Section 52 provides that 1/3 rd of the fee payable in an appeal shall be paid at the stage of admission of the first appeal or second appeal as the case may be and the balance shall be paid within such period not later than 15 days from the date of such admission as may be specified by the court, 'in case the appeal is admitted'. The above provision was considered by this Court in Ayisha Beevi v. District Collector (supra). Considering Section 52 of the Act Abdul Gafoor, J has held as follows in paragraphs 5, 6 and 7 of the judgment:-

"5. The second proviso to S.52 of the Act reads as follows:

"Provided further that one third of the court fee payable in an appeal shall be payable at the stage of admission of the first appeal or the second appeal as not later than the case may be and the balance shall be paid within such period. fifteen days from the date of such admission as may be specified by the court: in case the appeal is admitted" (Emphasis supplied).

6. Liability to pay balance court fee arises only when the appeal is admitted as per the said proviso. In this case, the appeal was not admitted. In terms of the proviso