Modi, J.—In this review application the question that has arisen for our consideration is whether the court-fee paid thereon by the petitioners is sufficient. The judgment from which the review application has been preferred was pronounced by a Bench of this Court on the 9th of October, 1952. The review application was tiled on 3rd January, 1953. There is, therefore, no dispute that the review application was filed within 90 days of the judgment. The appeal was valued by the petitioners for purposes of court-fee at Rs. 13,569/8/- and the present review application has been valued at the same figure. The stamp reporter has reported that the court fee of Rs. 108/- paid by the petitioners is insufficient and that they should have paid one-half of the sum of Rs. 595/- on the review application inasmuch as the court-fee payable on the memorandum of appeal, if it should have been filed at the time the review application came to be made, would be a sum of Rs. 595/-. It may be pointed out that after the memorandum of appeal was filed on 18.9.46 and before the application for review was made, the Rajasthan Court-fees (Adaptation) Ordinance had come into force on January 25, 1950, according to which enhanced rates of fees on plaints and memorandum of appeal are required to be paid.

2. There appears to be a conflict of judicial opinion on the point before us. Arts. 4 and 5 of Schedule 1 of Court-fees Act (No. VII of 18.70) provide as follows : —

Article 4.

Application for review of judgment if presented on or after the ninetieth day from the date of the decree.........The fee leviable on the plaint or memorandum of appeal.

Article 5.

Application for review of judgment, if presented before the ninetieth day from the date of the decree..............One-half of the fee leviable on the plaint or memorandum of appeal.

3. The whole question turns upon the interpretation of the expression "leviable" in the Articles referred to above. According to the High Court of Allahabad, Calcutta and the Chief Court of Oudh, the word "leviable" refers to the plaint or the memorandum of appeal filed in the suit, or appeal out of which the application for review arises. In other words, if the application is for review in respect of a decree passed in appeal, the court-fee will be the same as that payable on the memorandum in the appeal if the application for review falls under Art, 4, and half the amount of such court-fee if the application falls under Art. 5. See Parmeshar vs. Bakhtaivar (1) (A.I.R. 1933 All 20.), Nandi Lal vs. Jogendra Chandra Dutta (2) (A.I.R. 1924 Cal. 881.), Nageshar Sahai vs. Shiam Bahadur (3) (A.I.R. 1924 Oudh 108) and In the matter of Sheikh Maqbul Ahanied (4) (VI A.LJ. 215.). On the other hand the Bombay and the Madras High Courts have adopted a different construction and held that the word "leviable" refers to the point of the time when the review application falls to be actually presented. They have held, therefore, that the court-fee payable on a review application should be assessed on the footing as if the plaint or memorandum of appeal were presented at the time the review application was made and for the relief asked for in it. See In re Manohar C. Tambekar (5) (I.L.R; IV Bom. 26.) and Narayan Nair vs. Bhargavi Amma (6) (1927 Mad. 360.). We have carefully considered the question and we respectfully agree with the view of the Calcutta and the Allahabad High Courts in favour of which there is a preponderance of judicial opinion. The word "leviable" appears to have been used in Arts. 4 and 5 of the Court-fees Act to cover, for instance, the class of cases where a plaint or a memorandum of appeal is filed in forma pauperis. Another class of cases which appear to us to be covered by this expression would be those in which a certain amount of court-fee is properly leviable, but the actual fee that has been levied is either less than, or in excess of, that which was leviable according to law. The argument, therefore, that if the legislatur

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