ORDER

This civil revision petition is directed against an order declining to grant refund of excess court-fee paid on the plaint in O. S. No. 352 of 1956 District Munsif's Court, Tiruvellore. The claim for refund arose in the following circumstances. There was a sale of the petitioner's properties in execution of a small cause decree. The petitioner thereupon filed O. S. No. 352 of 1956 for setting aside the sale. The suit was contested by the decree-holder as well as the auction purchaser who inter alia took the objection that the suit was not the proper remedy as S. 47, C. P. C., would apply to the case. Thereupon the petitioner filed an application to convert the suit into an application under S. 47. The trial Court declined to grant the conversion sought. An appeal was filed against the order of the trial Court to the District Judge of Chingleput, who allowed the application and remanded the case for converting the suit into an application under S. 47 of the Civil Procedure Code and for disposing of the same. The plaint in the suit was accordingly treated as an application under S. 47, C. P, C. The petitioner then applied to the Court for refund of the excess court-fee under S. 70 of the Court Fees Act, 1955, on the ground that she had by mistake filed a suit where only an application should have been filed and that as a consequence she had to pay a higher court-fee than what would be warranted for a petition under S. 47. The lower Court has rejected the application for refund on the ground that the mistake contemplated under S. 70 of the Court Fees Act would not include a mistake of procedure. The petitioner has filed this civil revision petition against the order declining to grant the refund.

2. Section 70 which is mandatory in form directs a refund of court-fee whenever it is paid by mistake or inadvertence. Being a beneficial provision there is no warrant for restricting it to mistakes other than mistakes of procedure. Mr. Ramanujam who supports the order of the learned District Munsif contends that the mistake contemplated in the section would only be that which arises as a result of, for example, miscalculation of court-fee, that is, a mistake in the payment of the court-fee itself. But the section is framed in much wider terms. It says “Wherever court-fee is paid by mistake it shall be refunded.” A mistake which arises as a result of the adoption of an erroneous procedure as in the present case with the consequent payment of a court-fee appropriate to the procedure adopted will in my view come within the ambit of the section. In Ramakrishnayya v. Seshamma, AIR 1935 Mad 346 which was decided under the provisions of the old Act of 1870, a suit that was filed included an unnecessary relief as to the validity of a Will as well. That relief was subsequently given up as unnecessary. It was held that as by the plaint originally framed the plaintiff rightly considered that the relief relating to the declaration in regard to the Will was essential and that the fact of his having altered the suit by deleting the unnecessary relief would not entitle him to get a refund of the court-fee paid. It must be remembered that the provision for refund of court-fees under the previous Act of 1870 depended only on the discretion of the Court. Where the plaintiff deliberately claimed a relief and that relief became unnecessary as a result of his altering his prayer by asking for a higher relief it would clearly not be a case of exercising proper discretion to allow refund of court-fee. But the present case is governed by the terms of the statute which directs refund of court-fee whenever there is a mistake. It is not disputed that there is a mistake in the case, namely, filing a suit where only a petition under S. 47, C. P. C., had to be filed. It is only as a consequence of that mistake that a higher court-fee was paid. I am of opinion that the provisions of S. 70 would apply to such a case. The petitioner will therefore be entitled to ob