Courts have inherent powers under Section 151 of the Civil Procedure Code, 1908, to order a refund of excess court fees paid due to an erroneous order of the court.

The petitioner-appellant came in appeal to this Court against a preliminary decree for partition and he paid a court-fee of Rs. 15/- only, under Art. 11 of the Indore Court-fees Act. The matter came before Justice Rege who took the view that the appellants were liable to pay ad valorem court-fee on the value of their share. This appellant-applicant valued his share at Rs. 6000/- and paid the requisite court-fees. After some years the matter came before a Division Bench to which I was a party. The Division Bench on 14-7-1950, held that the Court-fee of Rs. 15/- paid on the memorandum of appeal by Mahadeo and Ranganath was sufficient as a partition suit comes under Cl. (6) of Art. 11 of the Indore Court-fees Act. The appellant now comes for a refund certificate of stamps of Rs. 391-4-0 which had been over-paid.

2. There is no doubt that the applicant-appellant is entitled to the refund of the court-fees paid by him under an erroneous order of this Court. It was held by a Division Bench of the Bombay High Court in Vishnuprasad v. Narandas AIR 1950 Bom 4 (A) that where the payment of excessive court-fees was due to the fact that under the earlier decisions of the Court suit for partition and the appeals arising therefrom were wrongly treated as falling under S. 7(5), Court-fees Act, it would be open to the Court to grant a certificate to the appellant entitling him to a refund of the court-fees amount paid by him in excess. I am in respectful concurrence with this view.

3. It was pointed out in this ruling that even in cases not covered by Ss. 13, 14 and 15 of the Court-fees Act, 1870, the Court can, under S. 151 of Civil P. C., order refund of court-fees paid in excess either by mistake, inadvertence or by oversight. This view is in consonance with that taken by other High Courts : See Munna Lal v. Ram Chandra, AIR 1930 All 471 (1) (B); In re, Narayana Reddiar, AIR 1942 Mad 316 (C) and Girish Chandra v. Girish Chandra, AIR 1932 Cal 450 (D). The Allahabad and Madras rulings had been followed by an earlier Bombay decision in Ahmed Ebrahim v. Government of Province of Bombay, AIR 1943 Bom 50 (E).

4. Mr. Patel, learned Deputy Government Advocate, urges that the same view has not been taken by a Division Bench (Chagla, C.J., and Gajendragadkar, J.) of the Bombay High Court in a recent ruling reported in Karfule Ltd. v. Arical Daniel Varghese, AIR 1953 Bom 73 (F). The facts of this case are distinguishable. Court-fees in this case had not been paid either by inadvertence, oversight or by mistake. The refund was sought on the ground that the appeal was withdrawn before it was heard by the High Court. It was contended that the judicial machinery which functions when a litigant comes to the Court did not function in the appeal fully and, therefore, a part of the court-fees ought to be refunded. Repelling this contention, it was observed by the High Court :

"Now, we think, as a general principle of law, it cannot be disputed that a Court has no power under S. 151 to circumvent the provisions of law. If the Legislature has cast a particular obligation upon a citizen, it is not open to the Court under S. 151 to exonerate the citizen from that liability or to reduce the quantum of that liability. Law must be given effect to, and the Court cannot be a party to the contravention of that law by exercising its supposedly inherent powers under S. 151.

Therefore, if there was a legal obligation upon the appellant to pay the court-fees before they could prefer an appeal to this Court, the mere fact that the appeal was compromised out of Court and was withdrawn, and not heard by this Court, cannot exonerate the appellants from paying the court-fees, nor can they contend that they are liable to pay less court-fees than what the law lays down is the proper court-fee. Undoubtedly, the Court has, as we shall presently point out, exercised inherent jurisdiction under S. 151 to order refund of court-fees in cases not covered by Ss. 13, 14 and 15.

But when