The court lacks power to refund court fees if withdrawn appeals do not meet statutory refund conditions under applicable acts.

1. This application raises a question of some interest regarding the interpretation of S. 43 of the Bombay Court - fees Act, No. XXXVI of 1959. The question arises in the following manner :
The opponents - plaintiffs filed a suit No. 92 of 1957 in the Court of the 2nd Joint Civil Judge (Senior Division), Ahmedabad, against the petitioner - defendant for the recovery of Rs.12412-8-0 alleged to be due and payable under a promissory note executed in 1951 by the petitioner. The Trial Court rejected the petitioner's plea of limitation and passed a decree in favour of the opponents - plaintiffs for a sum of Rs.12,347-8-0. On the 17th of January 1957, the petitioner presented a First Appeal against the said decree. On the 7th of April 1959 that appeal was registered and given a number, viz. No. 281 of 1959. Before the appeal could come up for admission, the learned advocate for the petitioner lodged a note before the office for the appeal to be placed on Board for withdrawal. In accordance with that note, the appeal then already numbered 281 of 1959 was placed on April 15, 1959 before the Division Bench of the then High Court of Bombay consisting of Tambe and Datar, JJ. The learned Judges granted liberty to the petitioner to withdraw the appeal and thereupon the appeal was withdrawn. The learned advocate for the petitioner thereafter filed a note before the office asking for a refund of the Court - fees paid by the petitioner at the time of the presentation of the appeal. The matter was placed before Mr. Justice Datar of the High Court of Bombay on the 7th of November 1959, when the learned Judge asked the petitioner's advocate to file a regular application. The learned advocate for the petitioner thereupon filed an application, being, application No. 531 of 1960, praying therein for the refund of the entire Court - fees paid by the petitioner. As a result of the bifurcation, this application has come to be transferred to this Court.

2. Mr. Shah for the petitioner has contended that the petitioner is entitled to the refund of the court - fees by reason of the fact that the appeal was withdrawn even before it could come for admission. As I have said, liberty to withdraw the appeal was granted to the petitioner's advocate on 15th April 1959, long before the Bombay Court - fees Act of 1959, came into force. The new Act came into force on August 1, 1959. Mr. Shah has conceded that the only sections in the Court - fees Act, 1870 , which provide for refund are S.13, S.14, S.15 and S.31. There is no dispute that none of these sections provides for the refund of Court - fees in respect of an appeal which has been withdrawn in the circumstances in which the present appeal was withdrawn. Mr. Shah, however, contended that assuming that the Court - fees Act of 1870 applies, though none of the S.13, S.14, S.15 or 31 of that Act is applicable, this Court has inherent jurisdiction to order refund of the Court - fees as the appeal was withdrawn by the petitioner before it even came up for admission. Mr. Shah has relied upon certain observations made by Mulla in his commentary under S.151 of the Code of Civil Procedure , 12th edition, where it is observed that a Court has inherent power to order refund of Court - fees paid by inadvertence, or in cases which are not governed by S.13, S.14 and S.15 of the . Relying on these observations Mr. Shah argued that I should exercise the inherent power under S.151 and direct that the Court - fees paid by the petitioner should be refunded to him.

3. There are decisions of certain High Court in which orders of refund of Court - fees though not falling under S.13, S.14 or 15 of the Court -