J. M. SHELAT, J. ( 1 ) THIS application raises a question of some interest regarding the interpretation of section 43 of the Bombay Court Fees Act No. XXXVI of 1959. The question arises in the following manner:- ( 2 ) THE opponents-plaintiffs filed a suit No. 92 of 1957 in 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 petitioners plea of limitation and passed a decree in favour of the opponents plaintiffs for a sum of Rs. 12 347 On the 17th of January 1959 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 bound for withdrawal. In accordance with that note the appeal then already numbered 281 of 1959 was placed on 15/04/1959 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 The learned Judges granted liberty to the petitioner to withdraw the appeal and thereupon the appeal was withdrawn.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 presention of the appeal. The matter was placed before Mr. Justice Datar of the High Court of Bombay on the 7/11/1959 when the learned Judge asked the petitioners 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. ( 3 ) 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has contended that the petitioner is entitled to the refund of the court-fees by reason of the fact that the appeal was withdrawn even before it could come for admission.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 a result of the bifurcation this application has come to be transferred to this Court. ( 3 ) 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has contended that the petitioner is entitled to the refund of the court-fees by reason of the fact that the appeal was withdrawn even before it could come for admission.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 petitioners advocate on 15/04/1959 even before the Bombay Court Fees Act of 1959 came into force. The new Act came into force on 1/08/1959 Mr. Shah has conceded that the only sections in the Court Fees Act 1870 which provide for refund are sections 13 14 15 and 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 sections 13 14 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 section 151 of the Code of Civil Procedure 12 edition where it is observed that a Court has inherent power to order refund of court-fees paid by inadvertance or in cases which are not governed by sections 13 14 and 15 of the Court Fees Act 1870 Relying on these observations Mr. Shah argued that I should exercise inherent power under section 151 and direct that the Court-fees paid by the petitioner should be refunded to him. ( 4 ) THERE are decisions of certain High Courts in which orders of refund of Court-fees though not falling under section 13 14 or 15 of the Court Fees Act 1870 were passed. These are:-MOHAMMAD Sadic Ali Khan Nawab Mirza vs. Saiyidi Ali Abbas (1972) I. L. R. 7 Luck. 588 In the matter of Kumud Nath Das Saha (1935) 39 C. W. N. 1074 Firm Hari Ram vs. H. O. Hay A. I. R. 1939 Lah. 257 Ahmed Ebrahim vs. Government of Bombay 44 Bom. L. R. 912 Vishnuprasad Narandas vs. Narandas 51 Bom. 588 In the matter of Kumud Nath Das Saha (1935) 39 C. W. N. 1074 Firm Hari Ram vs. H. O. Hay A. I. R. 1939 Lah. 257 Ahmed Ebrahim vs. Government of Bombay 44 Bom. L. R. 912 Vishnuprasad Narandas vs. Narandas 51 Bom. L. R. 602 Indu Bhusan vs. Secretary of State (1935) A. I. R. Cal. 707 and Chanamallapa vs. Shri Shailappa an unreported judgment of Mr. Justice Bavdekar of the High Court of Bombay in Civil Application No. 53 of 1960 (F. A. Fo. 247 of 1950) decided on 29/06/1951 Except in the decisions by the High Courts of Lucknow and Lahore and the unreported judgment of Mr. Justice Bavdekar the principle upon with the Courts in the rest of these decisions exercised the inherent power under section 51 of the Code of Civil Procedure and ordered refund was that the party concerned had either paid the court-fees where he was not liable to pay or that such a party had paid the court-fees in excess though mistake or inadvertance In other words the principle upon which the Courts acted under section 151 of the Code of Civil Procedure was that if a party has paid court-fees where he is not liable to pay or had paid court-fees more than what he is liable to pay through mistake or inadvertance. Government should not be allowed to take advantage of such mistake or inadvertance and it would therefore be right to ask Government to take only such court-fees as the Legislature by the Court Fees Act has made the party liable to pay and no more. If therefore any excess of courtfees has been paid or where there is no liability and yet a party through mistake or inadvertance has paid such court-fees it would be right for the Court to exercise its inherent power and pass an order of refund. In Mohammad Sadic Ali Khan Nawab Mirza vs. Ali Abbas I. L. R. 7 Luck. 388 the High Court had however ordered refund on the ground that the appeal filed in that case was wholly unnecessary. That order undoubtedly was beyond the principle had down in the aforesaid cases. Similarly in Firm Hari Ram vs. H. O. Hay A. I. R. 1939 Lah. 388 the High Court had however ordered refund on the ground that the appeal filed in that case was wholly unnecessary. That order undoubtedly was beyond the principle had down in the aforesaid cases. Similarly in Firm Hari Ram vs. H. O. Hay A. I. R. 1939 Lah. 257 Lahore High Court passed an order of refund in a case where it found that the lower Courts had not decided the case on merits. The Lahore High Court took the view that though the case did not strictly fall under section 13 of the Court Fees Act 1870 the case was analogous to one falling under that section and therefore passed an order for refund. in Chanamallapa vs. Shri Shailappa Bavdekar J. ordered refund of court-fees holding that the Court had inherent power to grant refund of court-fees irrespective of any limitation and that each case must be judged upon its own merits. He took the view that as the appeal was withdrawn at the time of admission the Court should order refund of courtfees. The learned Judge felt that applications to withdraw hopeless appeals should be encouraged as it would save unnecessary litigation. I may observe that the grounds on which Mr. Justice Bavdekar made the order of refund of court-fees are almost similar to the ones existing in the present case. If the judgment of Bavdekar J. were to be good law there is no doubt that Mr. Shah would be entitled to the refund of the entire court-fees paid by the petitioner. ( 5 ) THE question as to whether the Court has power under section 151 of the Code of Civil Procedure to pass an order of refund although the case does not fall under any of the sections in the Court Fees Act 1870 dealing with the refund of court-fees arose in Karfule Limited vs. Arical Daniel Varghese 54 Bom. L. R. 644. The learned Chief Justice sitting with Mr. Justice Gajendragadkar there held that the Court has no such power under section 151 of the Civil Procedure Code 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 section 151 to exonerate him from that liability or to reduce the quantum of that liability. Justice Gajendragadkar there held that the Court has no such power under section 151 of the Civil Procedure Code 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 section 151 to exonerate him from that liability or to reduce the quantum of that liability. The law must be given effect to and the Court cannot be a party to the circumvention of that law by exercising its inherent power under section 151. There an appeal to the High Court was compromise out of Court and the appellants when applied for refund of court-fees on the ground that the appeal had been withdrawn before it was heard. The High Court held that it had no jurisdiction to order refund of the court-fees which the appellants were in law liable to pay. The learned Chief Justice delivering the judgment of the Bench analysed various decisions cited before them and in which orders of refund had been passed. Dealing with the decision of the High Court in Firm Hari Ram vs. H. O. Hay A. I. R. 1939 Lah. 257 the learned Judges held that that decision was not a correct one because if the Court had to give effect to section 13 of the Court Fees Act. 1870 it must give effect to the provisions of the section as framed by the Legislature and not upon the ground that the case before them was analogous to one which would fall under section 13. Similarly they held that the decision by the High Court of Lucknow in Mohmmed Sadic Ali Khan Nawab Mirza vs. Saiyidi Ali Abbas did not lay down correct principle. If an appellant chooses to file an appeal which ultimately turns out to be unnecessary he is bound to pay court-fees which the law requires him to pay. Such a case would not be one of those cases where he has paid court-fees which he was not legally liable to pay. So far as the decision of Mr. If an appellant chooses to file an appeal which ultimately turns out to be unnecessary he is bound to pay court-fees which the law requires him to pay. Such a case would not be one of those cases where he has paid court-fees which he was not legally liable to pay. So far as the decision of Mr. Justice Bavdekar was concerned the learned Judge held that though they were in agreement with the view of the learned Judge that unnecessary litigation should be discouraged they could not agree with him that it was for the Court to give effect to that principle by really legislating contrary to the provisions of the Court Fees Act and that therefore that case was not one where the inherent power of the Court could have been exercised under section 151. The principle thus laid down in Karfule Limited vs. Arical Daniel Varghese was that a Court has no power under section 151 to circumvent the provisions of the Court Fees Act. If that Act casts a particular obligation upon a litigant to pay certain court-fees it is not open to the Court under section 151 to exonerate that citizen from that liability or to reduce the quantum of that liability. If of the other hand a litigant has paid court-fees which he was not bound to pay under the Court Fees Act or has paid court-fees in excess of what he was liable to pay under the provisions of the Act the Court would be entitled to and it would be in fact right and proper for the Court to exercise its inherent power under sec. 151 and to order refund of the court-fees or a part thereof paid by him in excess as the case may be. But as I have said before such an order would be passed on the principle that Government should not be allowed to retain the court-fees which the Legislature has not though fit to exact from the litigant. It is only on this principle that the Court can act under section 151 of the Civil Procedure Code. A case illustrative of this principle arose in Vishnuprasad Narayn v. Narayan 51 Bom. L. R. 602. The plaintiff in that case had paid ad valorem duty in a suit for partition. It is only on this principle that the Court can act under section 151 of the Civil Procedure Code. A case illustrative of this principle arose in Vishnuprasad Narayn v. Narayan 51 Bom. L. R. 602. The plaintiff in that case had paid ad valorem duty in a suit for partition. After the suit was filed a decision was given by the full bench of the High Court of Bombay to the effect that in a partition suit ad velorem duty was not payable but that what was payable was a fixed fee under sch. 11 art. 17 cl. (vii) of the Court Fees Act. In view of that decision the learned Judges who decided that case held that there was no liability upon the plaintiff to pay ad velorem fees and therefore ordered refund. The principle upon which the power under sec. 151 of the Civil Procedure Code was exercised in this decision is clear viz. that there was no legal liability on the plaintiff in that case to pay ad velorem duty in a partition suit and he having paid such ad velorem duty through mistake of law he was entitled to refund of the fee paid by him in excess. This being the principle on which the inherent power under sec. 151 can be exercised Mr. Shah must fail in his contention. ( 6 ) MR. Shah next contended that the petitioner would be entitled to an order or refund by virtue of the Notification dated 29/04/1960 issued by the Govt. of Bombay in exercise of the powers conferred upon then under subsec. (2) of section 43 of the Bombay Court Fees Act 1959 The notification provides for the refund of the court-fees in five cases enumerated in the schedule annexed thereto. There can be no doubt that if the notification were to apply to the facts of this case the petitioner would be entitled to a refund of at least half the court-fees under item (3) or (4) of that schedule. The question is whether sec. 43 of the new Act or the notification issued thereunder can apply in a case where there has been a withdrawal of the appeal prior to the date when the Act came into force. The question is whether sec. 43 of the new Act or the notification issued thereunder can apply in a case where there has been a withdrawal of the appeal prior to the date when the Act came into force. As I have pointed out liberty to withdraw the appeal was granted to the petitioner on 15/04/1959 and the appeal was accordingly withdrawn on that day that is to say long before 1/08/1959 when the new Act came into force. Mr. Shahs contention however was that by virtue of sub-sec. (2) of section 43 as also the fact that the application for refund was made by him on 7/01/1960 i. e. after the Act came into force the petitioner was entitled to the refund of at least half the court-fees. In my view such a contention cannot be sustained. ( 7 ) SEC. 43 deals with repayment of fees in certain circumstances. Subsec. (1) of that section provides that when a suit is settled by agreement of parties before any evidence is recorded or any appeal or cross-objections is settled by an agreement of parties before it is called on for effective hearing by the Court half the amount of fees paid by the plaintiff appellant or respondent on the plaint appeal or cross-objections as the case may be shall be repaid to him by the Court. There is a proviso to that sub-section but that is not relevant and therefore it is not necessary to recite it. It is clear from sub-section (1) of sec. 43 that the Legislature itself has provided for the refund of part of the court-fees in the events specific in that sub-section and therefore the Court can pass an order of refund by virtue of the provisions of that sub-section. It would seem however that besides providing for those events in which the Court can pass an order of refund the Legislature under sub-section (2) of the section gave certain powers to the Stale Government empowering the State Government to provide by an order repayment to a plaintiff or an appellant or a respondent of any part of the fees paid by him on a plaint or appeal or cross-objections in suits or appeals disposed of under such circumstances and subject to such events as may be specified in the order. It is by virtue of this power reserved to the State Government by sub-section (2) of sec. 43 that the notification referred to above was issued by the State Government. Mr. Shah argued that under sub-section (2) the State Government can pass an order for refund in any circumstances that it deems proper. That is correct. The notification issued by the State Government does in fact provide for the refund of the court-fees in certain circumstances. Mr. Shah argued that the petitioner having withdrawn his appeal even before it came up for admission that is to say before any preliminary hearing he would be entitled to claim an order of refund from this Court. Sec. 43 (2) which gives powers to the State Government to issue an order providing for refund must be construed to be one which applies to matters which arise after the 1st of August 1959 when the Act came into force. For I find nothing in section 43 or in the notification issued by the State Government thereunder to justify the view that that section or the notification would apply in the case of an appeal which was withdrawn long before the Act came into operation. It is ture that an application for the refund was made on the 7th of January 1960 after the Act came into operation. But the fact that that application was made after the Act came into operation is hardly relevant. What is relevant is the date when the appeal was withdrawn. At that date the Court Fees Act 1870 which had no provision for refund in such a case was in operation. If therefore the petitioner was entitled to any order of refund of Court-fees it would be under the Act which was applicable then and not the Act of 1959 which was not then in operation. The notification issued under powers reserved under sub-section (2) of section 43 therefore can apply only to those matters which arise after the Act came into operation and not to matters which were disposed of or withdrawn as in this case long before the Act came into operation. ( 8 ) FOR these reasons the application must fail and is dismissed. The fair of costs would be that there shall be no order as to costs. Application dismissed. .