( 1 ) THIS matter arises out of the report of the Chief Inspector of Stamps about the deficiency of court-fee paid on their written statements by defendants--respondents 5 and 6 and by defendant 7 in the Court below.

( 2 ) THE facts briefly stated are as follows : The plaintiff-respondents filed a suit for partition of certain properties. There were seven defendants to the suit. Defendants 1 to 3 are the present appellants. Defendants 5 and 6 filed one written statement and defendant 7 filed another written statement. Defendants 5 and 6 and defendant 7 claimed that their shares in the property may be partitioned and given to them. They did not pay any court-fee on this relief. These defendants supported the plaintiffs claim otherwise. Defendants 1 to 3 opposed the plaintiffs claim. The Court ultimately decreed the suit for partition and passed a preliminary decree declaring the shares of the parties. Against this decree the present appeal has been filed by defendants 1 to 3. To this appeal the plaintiff is a respondent and defendants 5 and 6 and defendant 7 are also respondents. The relief claimed in this appeal is that the suit for partition be dismissed.

( 3 ) AFTER the present appeal was filed in this Court, proceedings for the preparation of the final decree were taken up in the Court below. The Court below directed that the shares of defendants 5 and 6 and of defendant 7 be partitioned and separate possession be given to them on condition that they paid court-fee on the value of their shares. Each set of these defendants paid a sum of rs. 365/- as court-fee on the value of their shares. The value of their shares has never been in dispute. The amount of Rs. 365/- which was paid by each of them was held by the Court below to be sufficient and a final decree was prepared in which defendants 5 and 6 and defendant 7 were allotted separate shares. This decree, we are told, was put into execution and these defendants have already obtained possession over their shares. No appeal has been filed against this decree.

( 4 ) WHILE the Chief Inspector of Stamps was examining the matter of court-fee in the appeal in this Court, he found that no court-fee had been paid by defendants 5, 6 and 7 on their written statements, and reported that they were liable to pay court-fee. This was, before the Court below took up proceedings for the preparation of the final decree and asked these defendants to pay court-fee on their written statements. By an unfortunate mistake the, report of the Chief Inspector or Stamps was shown not to defendants 5 and 6 and 7 but to the counsel of defendants 1 to 3, the appellants in this appeal. The court-fee not having been paid; the appeal was dismissed for default, but was later restored and then it was discovered that the court-fee was payable not by defendants 1 to 3 who were appellants, but by defendants 5, 6 and 7 who were respondents. When this matter was brought to the notice of the learned counsel for the attendants-respondents 5, 6 and 7, he stated that in the Court below this matter had been finally determined and his clients had paid the court-fee which was required of them and that a final decree had been prepared and possession delivered.

( 5 ) THE office then reported that although each set of defendants had paid Rs. 365/- as court-fee which was declared by the Court below to be sufficient, they ought to have in fact paid Rs. 465/4/-instead of Rs. 365/- and that they ought to pay the difference now.

( 6 ) LEARNED counsel for the defendants-respondents states that he does not intend to use the written statements in this appeal at all because the share of his clients has already been separated and possession delivered to them and the matter has terminated so far as they are concerned.

( 7 ) THE question is whether in the circumstances the defendants-respondents can be ordered to pay the difference in this Court.

( 8 ) THERE are only two sections in the Court-fees Act which can have any be