JAGDISH SAHAI, J :- I have had the advantage of reading the opinion prepared by my brother Pathak. I regret, for reasons given in this opinion, I am unable to agree with the conclusion drawn by him.

2. Being doubtful of the correctness of the decision of this Court in Raja Virendra Shah Ju Deo v. State of Uttar Pradesh, 1964 All LJ 868 our brother G. C. Mathur has referred this case to a Full Bench. This is how the matter has come before us.

3. This case arises out of an application made by the appellant in second appeal no. 3105 of 1963 under Section 13 of the Court-fees Act, 1870 (hereinafter referred to as the Act).

4. This Court allowed the second appeal aforesaid on 2nd of January 1967 and set aside the decree passed by the first appellate court. It further remanded the case to the first appellate court with the direction to rehear the appeal.

5. The prayer contained on the instant application reads :-

"It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to grant the applicant a certificate authorising him to receive back the full amount of court-fee of Rs. 717.50 paid in the above noted second appeal from the Collector of Varanasi or pass any other and further order which may be deemed fit and proper in the ends of justice."

Section 13 of the Act reads :-

"If an appeal or plaint, which has been rejected by the lower court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in Section 351 of the same Code for a second decision by the lower court, the appellate Court shall grant to the appellant a certificate, authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal;

....................."

Admittedly and clearly section 351 mentioned in section 13 of the Act is section 351 of the Code of Civil Procedure 1859 which was in force in 1870 when the Act was passed and enforced. That provision was in the following terms :-

"If the lower Court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact which shall appear to the Appellate Court essential to the rights of the parties, and the decree of the Lower Court upon such preliminary point shall be reversed by the decree in appeal, the Appellate Court may, if it thinks right, remand the case, together with a copy of the decree in appeal to the Lower Court, with directions to restore the suit to its original number in the Register and proceed to investigate the merits of the case, and pass a decree therein."

Section 352 of the Code of 1859 provided :-

"It shall not be competent to the Appellate Court to remand a case for a second decision by the Lower Court, except as provided in the last preceding section."

6. The Code of 1859 was repealed and was replaced by the one of 1877 (Act X of 1877). In the Code of 1877 the counter part of section 351 of the 1859 Code was section 562. This provision ran :-

"If the Court against whose decree the appeal is made has disposed of the suit upon a preliminary point so as to exdude any evidence of fact which appears to the appellate Court essential to the "determination of the rights of the parties and the decree upon such preliminary point is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case, together with a copy of the order in appeal, to the Court against whose decree the appeal is made, with directions to re-admit the suit under its original number in the register and proceed to investigate the suit on the merits.

The appellate Court may, if it thinks fit, direct what issue or issues shall be tried in any case so remanded."

Section 564 of the 1877 Code provided:

"The appellate Court shall not remand a case for a second decision, except as provided in Section 562."

7-8. The Code of 1877 was repealed and was replaced by the one of 1882 (Act No. XIV of 1882). In this Code the provisions of Sectio