The court has inherent power to order refund of court fee paid in excess when obvious injustice would be done if it was not repaid.

VENKATARAMAN, J. :- In this case an appeal memorandum was filed against a particular decision of Sub Court, Vellore, in partition suit. A court-fee of Rs. 200 which was the correct court-fee was affixed to the Memorandum of appeal. But, before the appeal memorandum was numbered and when it was in the stamp register stage, having been numbered as S. R. 17499 of 1968, the appellants were able to compromise the matter with the respondents and therefore filed C. M. P. 1030 of 1971 to withdraw the appeal. That permission was granted. By this application C. M. P. No. 12034 of 1970, the appellants pray for issue of a certificate for refunding the court-fee of Rs. 200.

2. It is conceded by Sri T. V. Balakrishnan, learned counsel for the petitioners that the prayer is not governed by any specific provision of the Court fees Act of 1955, (those provisions are contained in Sections 66 to 70); but the learned counsel relies on a decision of a Bench of this court in Ramaswami Nadar v. State of Madras, 1970-1 Mad LJ 240 : 83 Mad LW 341 : (AIR 1971 Mad 136). That was a case where a writ appeal was filed, but before it was numbered and was in the stamp register stage, the petitioner got the relief he wanted outside the court and thereafter he filed the application for refund of the court-fee. Veeraswami, C. J. and K. N. Mudaliyar, J. delivering the judgment made it clear that the prayer would not come under any of the specific provisions for refund enacted in the Court-fees Act; but they observed that under the inherent powers of the court under Section 151, Civil P. C., a certificate would issue where the court felt that, in the interests of justice, it would direct a certificate to issue for the refund of the court-fee subject to deduction of the usual percentage. They referred to the previous cases. They also referred to the principle that court-fee is not a tax but only a fee. They accordingly wound up by saying that there will be a direction for the issue of the usual certificate for the refund of court-fee subject to the reduction of the normal spoliation charges.

3. The form which the learned Judges had in mind does not appear from the judgment and the office has not been able to trace the exact form of the certificate issued in that particular case. But I find that in a subsequent case C. M. P. No. 1009 of 1970 (Mad) in an unnumbered writ appeal S. R. 40053 of 1962 which was a similar case where the writ appeal had not been numbered but was settled put of court an order for refund was directed by Veeraswami, C. J. and one of us (Gokulakrishnan. J.) to the following effect :-

"Even before the writ appeal was numbered the matter was reported as settled out of court. That being the case, the appellant is entitled to a refund of the court-fee; subject, of course, to the deduction of the spoliation charges at the usual rate".

Actually I find that the certificate which was issued in that case did not stop with stating the facts that the appeal had not even been numbered and was not pressed at that stage but went further to state that the appellant was entitled to refund of the said court-fee of Rs. 100 subject, of course, to the deduction of the spoliation charges as usual. Thus the actual certificate issued by this court purported to hold that the appellant was entitled to refund of the court-fee which would mean that he was entitled, as a matter of right, to refund of court-fee. But stated in this form, I find that the certificate has gone beyond the precedents referred to in 1970-1 Mad LJ 240 : (AIR 1971 Mad 136).

4. The matter requires to be explained in some detail. In Thammayya Naidu v. Venkataramanamma, ILR 55 Mad 641 : 62 Mad LJ 541 : (AIR 1932 Mad 438), an appeal was preferred in a land acquisition matter. The District Judge had held on the reference under Section 18 of the Land Acquisition Act that a widow was entitled to a life interest in the compensation amount. The second claimant filed an appeal against that order to this