Das, J.:— This is an application by the Appellant (Defendant No. 1) for a direction for a refund of the court-fees paid on the Memorandum of Appeal and for the issue of a certificate authorising the Petitioners to receive back from the Collector the court-fees.

2. The facts are as follows:—

3. The Plaintiff-Respondent obtained on 21st December, 1931, a preliminary decree for partition and for accounts, and for certain incidental reliefs. On 12th December, 1935, a Commissioner for accounts was appointed. The Commissioner submitted his report. Objections to the report were filed by the Plaintiffs and Defendant No. 1. The suit was fixed for hearing on 21st February, 1947. On that date, the Defendant No. 1 did not appear, the Court rejected the objections to the report of the Commissioner and passed an ex parte final decree. The decree was signed and sealed on 31st July, 1947.

4. Meanwhile, the Defendant No. 1 had filed an application under Or. 9, r. 13, Civil Procedure Code. The application was dismissed on 21st June, 1947. Against the said order, the Defendant No. 1 preferred an appeal to this Court, being F.M.A No. 126 of 1947.

5. During the pendency of the appeal the Petitioner was substituted in place of her deceased husband, the original Defendant No. 1. The appeal was dismissed on 1st February, 1950.

6. On 22nd May, 1950, the Petitioner filed this appeal, being F.A.T 227 of 1950. The Petitioner paid court-fees on the Memorandum of Appeal. As the appeal was filed out of time, the Petitioner filed on 24th February, 1950, an application under sec. 5 of the Indian Limitation Act for extension of time to file the appeal and obtained a Rule, Civil Rule No. 184F of 1950. The rule was discharged on 9th May, 1950, on the ground that the Petitioner was not entitled as a matter of law, to an exclusion of the entire period taken up by the application under Or. 9, r. 13, Civil Procedure Code, and by an unsuccessful appeal against the order dismissing the said application, as also on the ground that the Petitioner did not state specifically when the Petitioner's husband and the Petitioner were advised by their lawyer that they would be entitled to such exclusion of time.

7. The present application for a refund of court-fees was filed on 17th August, 1950.

8. Mr. Basu, learned Advocate for the Petitioner, referred us to the decision in the case of J.C Gaulsion v. Raja Janakinath Roy(1). The learned Senior Government Pleader, on the other hand, referred us to the case of Indu Bhusan Roy v. Secretary of State for India in Council(2).

9. There is an apparent conflict between the principles underlying the two decisions cited, but having given the matter my best consideration, I am of the opinion that the principles laid down in the latter case should be followed.

10. The powers of the Court to direct a refund of court-fees on a Memorandum of Appeal or on an application for review of judgment are expressly provided for in secs. 13 to 15 of the Court Fees Act. The contention that the above sections define the extent of such power of the Court, has been negatived by the different High Courts. It is now well settled that in appropriate cases, the Courts may direct a refund of court-fees in the exercise of their inherent jurisdiction even in cases outside secs. 13 to 15 of the Court Fees Act. Such inherent jurisdiction is founded on the principle that every Court has inherent power to act ex debito justitiae, i.e, to do that real and substantial justice for the administration of which alone it exists. The power is subject to the qualification that there is no room for the application of the inherent power where there is an express provision negativing the claim or where the party has neglected to adopt the prescribed remedy: Ghuznavi v. The Allahabad Bank, Ltd.(3).

11. Sec. 151 of the Civil Procedure Code does not formulate a new doctrine but merely furnishes legislative recognition of the above well-recognised principle.

12. In the exercise of the above well-defined powers, the Courts have directed a refund of court-fees paid in the following cases, viz., (1) where excess court-fees were paid by a party in pursuance of an order of the Court which proceeded on an erroneous view of the law: Girish Chandra Mali v. Girish Chandra Dutta(4).

(2) Where the party paid excess court-fees through inadvertence or mistake: In the matter of Munna Lal(5) or a mistaken view of the law: Mohammad Resa v. Rajballabh Nath Singh(6) and Vijoylakshi Ammal v. K.R Srinivasa Ayyangar(7). In the above class of cases, the payment of the excess court-fees was unnecessary and was not due to the Government and it was only fair that the Government should not unjustly enrich itself at the expense of the litigant. The party concerned had, therefore, an undoubted right to recover money not legitimately due to the Gov- ernment A remedy by suit might lie but instead of driving the parties to a Suit, the Court in such cases acted merely on an application with a view to do speedy justice between the litigant and the Government.

13. The above principle cannot, however, be invoked by a party who is required to pay court-fees for getting the relief, claimed by him. His eventual success or failure to obtain the relief claimed by him is wholly immaterial in determining his right to get a refund of court-fees. Thus when a party filed an appeal which became unnecessary, because of his success in some other proceeding, e.g, granting of a petition for amendment, and then applied for refund of court-fees, paid on the Memorandum of Appeal, the High Court of Madras refused to direct a refund. In re: Chidambaram Chettiar(7a). Similarly in a case where an appeal was settled out of Court and was allowed to be withdrawn, an application for refund of the court-fees paid on the Memorandum of Appeal, was rejected. In re, B. Kappini Gowder(8).

14. We have thus to see if the Petitioner can get a refund of the court-fee in the light of the above principles. Sec. 6 of the Court Fees Act requires that the Memorandum of Appeal cannot be filed in Court or received by the officer concerned unless there has been paid the proper fee payable under the schedules of the Act. In Bengal, the Court may receive a Memorandum of Appeal in respect of which an insufficient fee has been paid, under certain condition.

15. Sec. 30 of the Act further provides that the court-fee stamp must be cancelled before the memorandum is filed.

16. Or. 41, r. 1, Civil Procedure Code, requires that every appeal shall be preferred in the form of a memorandum and presented to the Court or to such officer as it appoints in this behalf. Rule 12, Part II, Chapter V of the Appellate Side Rules of this Court provides that the Memorandum of Appeal shall be presented in the High Court to the Deputy Registrar or such other person as the Registrar may appoint, and the date of such presentation shall be deemed to be the date of presentation for the purpose of limitation…. Rule 13 then provides that no Memorandum of Appeal except those filed on the date of re-opening of the High Court after the annual long vacation, shall be presented for admission unless the same bears an office report as to limitation of time and of the sufficiency or otherwise of the court-fee stamp. Such report shall ordinarily be endorsed on the memorandum and returned by the Stamp Reporter.

17. Rule 13 further provides that if the report of the Stamp Reporter is that the prescribed period of limitation has expired, such memorandum shall be returned by the party filing it, who may present the same to the Division Court.

18. Rule 17 prescribes that the officer to whom the Memorandum of Appeal is presented under Rule 12 shall endorse on every such memorandum the date of the presentation, and shall send the same to the Stamp Reporter.

19. The effect of the rules referred to above is that court-fee stamps should be affixed on the Memorandum of Appeal before the appeal can be presented to the officer concerned, whether the appeal is within time or not. An application under sec. 5 of the Indian Limitation Act cannot be made without the preliminary steps required by Rules 12, 13, 17. The affixing of the court-fee stamps on the Memorandum of Appeal is accordingly an essential pre-requisite to the filing of the application under sec. 5 of the Indian Limitation Act. The fact that such an application did not succeed, is, as stated already, immaterial in deciding the question before us.

20. In this view, there is no room for the exercise of the inherent power of the Court in the facts of the present case. This view is supported by the decision in Siddheswar Chandra v. Satya Kishore Banerji(9) and is in consonance with the principle enunciated in Indu Bhusan Roy v. The Secretary of State for India in Council.

21. In the case of J.C Gaulston v. Raja Janaki Nath Roy the attention of the Court was not drawn to the considerations indicated above.

22. The decision was dissented from in the following cases: In re: Chidambaram Chettiar, In re: B. Kappini Gowder, Indu Bhusan Roy v. Secretary of State for India in Council and Siddheswar Chandra v. Satya Kishore Banerji and is, in my opinion, opposed to well-recognised principles regulating the exercise of the inherent powers of the Court in the matter of refund of court-fees. In the case of In re: Narayan Reddi(10) the Court directed a refund of court-fees paid on an application for review of an order rejecting a plaint, on the ground that the court-fees were not meant to be utilised until the petition for review was accepted by the Court. Such a ground is, in my opinion, untenable as it would entitle all unsuccessful parties in suits or appeals to get a refund of court-fees. As already pointed out, the real test is whether payment of court-fees was necessary for the initiation of the proceedings irrespective of the fact whether the said proceedings succeeded or not.

23. My conclusion, therefore, is that the Petitioner is not entitled to the reliefs prayed for by her. The application is accordingly dismissed but in the facts and circumstances of this case we direct that the parties do bear their own costs.

Das Gupta, J.:— I agree.