( 1 ) THIS is an application for refund of Court-fees under S. 13 of the Court fees Act filed by the successful appellant in first Appeal No. 1/70 (Radhakishan v. Mohanlal) which was allowed by Order dated 16-11-87 whereby the judgment and decree of the trial Court have been set aside and the case has been remanded to the trial Court with the direction to re-admit the suit under its original number and to proceed to determine the suit afresh.

( 2 ) SECTION 13 of the Court-fees Act, 1870 in so far as, it i material is as follows : -"13. Refund of fee paid on Memorandum of Appeal : if an appeal or plaint, which has been rejected by lower Court on any of the grounds, mentioned in the Civil P. C. , is ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in S. 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of fee paid on the Memorandum of Appeal. "

( 3 ) SECTION 351 of the C. P. C. of 1859 read as follows : -"351. 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. "

( 4 ) THE Code of 1859 was repealed and replaced by the Code of 1877. Section 562 of the 1877 Code was substantially in the same terms as S. 351 of 1859 Code. In the Code of 1882 there appears no change in the section and after the Code of 1882 was repealed and replaced by the Civil P. C. , 1908 the corresponding provision appears in O. 41, R. 23 of the 1908 Code which has also provided for the remand of a case to the lower Court by the Appellate Court where the suit had been disposed of upon a preliminary point and the decision of such preliminary point was reversed in appeal by the Appellate Court.

( 5 ) THUS, S. 13 of the Court-fees Act applied to a case of remand under the provisions of O. 41, R. 23 of the Code.

( 6 ) BY S. 87 (xi) of the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976), a new Rule 23a providing for remand in other cases has been added in the Civil P. C. , 1908 thus : (xi) after R. 23, the following rule shall be inserted namely :"23a. Remand in other cases. Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under R. 23. "

( 7 ) THE instant case is admittedly a case of remand covered by O. 41, R. 23a, C. P. C. since the trial Court from whose decree the First Appeal No. 1/76 was preferred, had disposed of the suit otherwise than on a preliminary point and this Court reversed the decree of the trial Court and ordered redetermination of the suit.

( 8 ) RULE 23a of O. 41 of the Code is a distinct and separate provision and not an amendment in R. 23 of O. 41, C. P. C. and covers cases other than those mentioned in R. 23, namely the cases of remand after reversal of decree in appeal where the original suit was disposed of otherwise than on a preliminary point. As such, the remand under O. 41, R. 23a is not the one contemplated in S. 351 of the 1859 Code which is referred to in S. 13 of the Court-fees Act. Therefore, the refund of Court-fees contemplated under S. 13 of the Court-fees Act is not available in a case of remand under O. 41, R. 23a of the 1908 Code as amended by Act of 1976. The applicant, therefore, cannot be