Venkataraman, J.- In this case an appeal memorandum was filed against a particular decision of Sub-Court, Vellore, in partition suit. A Court-fee of Rs. 200 which was the correct Court-fee was affixed to the memorandum of appeal. But, before the appeal memorandum was numbered and when it was in the stamp register stage, having been numbered as S.R. No. 17499 of 1968, the appellants were able to compromise the matter with the respondents and therefore filed C.M.P. No. 1030 of 1971 to withdraw the appeal. That permission was granted. By this application C.M.P. No. 12034 of 1970, the appellants pray for issue of a certificate for refunding the Court-fee of Rs. 200. 2. It is conceded by Sri T.V. Balakrishnan, learned Counsel for the petitioners that the prayer is not governed by any specific provision of the Court-fees Act of 1955, (those provisions are contained in sections 66 to 70); but the learned Counsel relies on a decision of a Bench of this Court in Ramaswami Nadar v. State of Madras1. That was a case where a writ appeal was filed, but before it was numbered and was in the stamp register stage, the petitioner got the relief he wanted outside the Court and thereafter he filed the application for refund of the Court-fee. Veeraswami, C.J. and K.N. Mudaliyar, J., delivering the judgment made it clear that the prayer would not come under any of the specific provisions of refund enacted in the Court-fees Act; but they observed that under the inherent powers of the Code under section 151, Civil Procedure Code, a certificate would issue where the Court felt that, in the interests of Justice, it would direct a certificate to issue for the refund of the court-fee subject to deduction of the usual percentage. They referred to the previous cases. They also referred to the principle that court-fee is not a tax but only a fee. They accordingly wound up by saying that there will be a direction for the issue of the usual certificate for the refund of court-fee subject to the reduction of the normal spoliation charges. 3. The form which the learned Judges had in mind does not appear from the judgment and the office has not been able to trace the exact form of the certificate issued in that particular case. 3. The form which the learned Judges had in mind does not appear from the judgment and the office has not been able to trace the exact form of the certificate issued in that particular case. But I find that in a subsequent case C. M. P. No. 109 of 1970 in an unnumbered writ appeal, S. R. No. 40053 of 1962 which was a similar case where the writ appeal had not been numbered but was settled out of Court an order for refund was directed by Veeraswami, C. J. and one of us (Gokulakrishna, J.) to the following effect:- “Even before the writ appeal was numbered the matter was reported as settled out of Court. That being the case, the appellant is entitled to a refund of the court-fee; subject, of course, to the deduction of the spoliation charges at the usual rate.” 4. Actually, I find that the certificate which was issued in that case did not stop with stating the facts that the appeal had not even been numbered and was not pressed at that stage but went further to state that the appellant was entitled to refund of the said court-fee of Rs. 100, subject, of course, to the deduction of the spoliation charges as usual. Thus the actual certificate issued by this Court purported to hold that the appellant was entitled to refund of the court-fee which would mean that he was entitled, as a matter of right, to refund of court-fee. But stated in this form, I find that the certificate has gone beyond the precedents referred to in Ramaswami Nadar v. State of Madras1. 5. The matter requires to be explained in some detail. In Thammyya Naidu v. Venkataramanamma2, an appeal was preferred in a land acquisition matter. The District Judge had held on the reference under section 18 of the Land Acquisition Act that a widow was entitled to a life interest in the compensation amount. The second claimant filed an appeal against that order to this Court (A. S. No. 277 of 1929), and paid ad valorem Court-fee Rs.2,332-7-0 on the amount of the award. He later realised that it was enough if a smaller Court-fee of Rs. 500 for a mere declaration was paid and prayed for the refund of the excess court-fee. The second claimant filed an appeal against that order to this Court (A. S. No. 277 of 1929), and paid ad valorem Court-fee Rs.2,332-7-0 on the amount of the award. He later realised that it was enough if a smaller Court-fee of Rs. 500 for a mere declaration was paid and prayed for the refund of the excess court-fee. The Bench of this Court (Wallace, C.J., and Cornish, J.) upheld this contention that it was enough to pay a court-fee of Rs. 500 for the relief of declaration and that it was unnecessary to pay a larger court-fee because the amount was not immediately payable to the widow. It was argued that the refund of court-fee could be allowed only in cases covered by sections 13, 14 and 15 of the Court-fees Act, 1870; but they held that nevertheless the Court had inherent power to order refund of court-fee paid in excess when obvious injustice would be done if it was not repaid. They observed: “It would be unreasonable and unjust for the High Court not to assist party to recover excess court-fee erroneously paid under its own order or under the orders of Courts subordinate to it. Of course what the High Court really does judicially what is the proper court-fee and then issue a certificate to the party that excess court-fee has been levied. It still lies with the revenue authorities to decide whether or not they will refund the excess in the circumstances. We direct that in this case the necessary certificate to issue.” 6. In Chidambaram Chettiar, In re3, the appeal was withdrawn as having been settled out of Court. The appellant prayed for refund of the court-fee. The Bench (Venkatasubba Rao and Abdur Rahman, JJ.), after observing that sections 13, 14 and 15 of the Court-fees Act of 1870 did not apply, posed the question: "Then the question arise, has the Court power to direct a refund of court-fees independent of the express provisions of the Court-fees Act? The Courts have gone to the extent of holding that they can order a refund under their inherent powers, where an excess court-fee has been paid (7) by mistake of party, (ii) in obedience in a wrong order of Court. The principle underlying these decisions, if we may say so with respect, is both good law and sound sense. The Courts have gone to the extent of holding that they can order a refund under their inherent powers, where an excess court-fee has been paid (7) by mistake of party, (ii) in obedience in a wrong order of Court. The principle underlying these decisions, if we may say so with respect, is both good law and sound sense. But to go further and hold that a court-fee, properly paid, can be refunded, would be to render nugatory, the express provisions of the Court-fees Act, for what difference does it make in principle, between permitting a document to be filed originally without a court-fee and refunding the court-fee already paid in respect of it ? It is elementary that no Court has inherent power to do that which is expressly prohibited by statute............In the result, the application is rejected with costs." 7. We then come to the decision of Panchapakesa Ayyar, J., in Nagaratnam In re1. There the prayer was for refund of court-fee of Rs. 149-15-0 paid by the petitioner, Nagaratnam in an unnumbered second appeal. The Court returned the paper for filing the lodgment schedule receipt for Rs. 25 in two days Nagaratnam did not file the lodgment schedule receipt at all. Instead, she negotiated with the other side, compromised with him, and settled the matter and represented the appeal with a petition claiming a refund certificate for the court-fee paid. The learned Judge referred to the decisions in Thammaya Naidu v. Venkataramanamma2, Chidambara Chettiar, In re3 m and also the unreported decision of Leach, C. J., and Happell, J., in C. M. P. Nos. 4439 to 4442 of 1941, in an identical matter where the learned Judges had refused to refund the court-fee. Following these authorities, the learned Judge held that the Court could not make any order for refund but went on to observe: "But it may be urged that this is a case of court-fee getting spoilt, without being used for an appeal, something like a stamp paper getting spoiled without being used for a document. Following these authorities, the learned Judge held that the Court could not make any order for refund but went on to observe: "But it may be urged that this is a case of court-fee getting spoilt, without being used for an appeal, something like a stamp paper getting spoiled without being used for a document. Even if that is so, the petitioner’s remedy, if any, is not to apply for a refund certificate from the Court, but to apply to the Government ex gratia and misericordia domini regis ("by favour" and "by the mercy of our Lord the King"), for a refund less the one anna in the rupee deductions, as for spoilt stamp papers, if they are pleased to grant it. For that purpose alone, a certificate will be granted to the petitioner as requested by him, that the second appeal was not mimbered or heard by this Court and that the appeal memorandum has been stamped with a court-fee of Rs. 149-15-0 and that the court-fee stamps have been defaced by the High Court office in the usual course of routine. I see no objection to granting a certificate to that effect under section 151, Civil Procedure Code. The Government will, of course, pass such orders as they like after perusing this certificate, as it is wholly ex gratia and misericordia domini regis. The re-presented appeal memorandum which has now become unnecessary for retention in this Court, will be; as requested by the petitioner, restored to him for prosecuting his ex gratia misericordia domini regis application to the Government, if so advised." 8. It seems to me that this was the first case where such a certificate was issued, leaving it to the executive authorities to issue refund or not. The above decision was followed by Ramaswami, J., in Krishnamurthi alias Krishnananda Muda-liar, In re4 where the appeal memorandum was not properly stamped. It was returned for payment of deficit court-fee. The appellant did not represent it as he found no necessity for it; and he asked for refund of the court-fee paid already. Ramaswami, J., referred to Nagaratnam, In re1, and observed: "To my mind this procedure may be followed in this case also. The fact that it is not shown that the non-prosecution of the appeal here is not the result of compromise or settlement as in that case does not make any difference. Ramaswami, J., referred to Nagaratnam, In re1, and observed: "To my mind this procedure may be followed in this case also. The fact that it is not shown that the non-prosecution of the appeal here is not the result of compromise or settlement as in that case does not make any difference. If anything, refund is less justifiable when the appellant has got something by settlement by using the unfiled appeal as a means to extract some concession. The fact that the Legislature has thought fit to enact a provision of refund in the new Act in such cases indicated that in the opinion of the framers of the law, refund in such cases is just and equitable (see section 66(1) of the New Court-fees Act). 9. The reference is to the Madras Court-fees and Suits Valuation Act, 1955. Section 66(1) of the new Act definitely provides for refund of court-fee where the fee paid on a plaint or memorandum of appeal is deficient and the deficiency is not made good within the time allowed by law or granted by the Court. It may be observed that though the appeal memorandum in Krishnamurthi alias Krishnananda Mudaliar, In re1, was filed after the new Act came into force the provisions of the new Act were not applicable because seetion 87 (2) says that where the suit or proceeding had been instituted before the commencement of the new Court-fees Act (which commenced on 19th May, 1955), the provisions of the old Court-fees Act of 1870 would still continue to apply; and it will be noted that in the Act of 1870 there was no provision similar to section 66 (1) of the Act of 1955. That was why Ramaswami, J., fortified his reasoning by observing that in the new Court-fees Act a specific provision under section 66 (1) had been enacted to refund the Court-fee already paid by a party who had not paid the deficit court-fee on the memorandum of appeal. 10. Ramaswami, J., followed the above decision of his in Mohan v. Balaram2, where the appeal was sought to be filed in forma pauperis but the appellant was asked to pay court-fee. He was not able to do so and hence prayed for refund of court-fee to the extent already paid. 10. Ramaswami, J., followed the above decision of his in Mohan v. Balaram2, where the appeal was sought to be filed in forma pauperis but the appellant was asked to pay court-fee. He was not able to do so and hence prayed for refund of court-fee to the extent already paid. A certificate was granted observing: "This is a fit case for the issue of refund certificate for enabling the petitioner to apply to the Revenue authorities for ex gratia refund as in the case of spoiled stamps as the appeal has not been numbered." 11. Then’ there is an unreported judgment dated 23rd September, 1963 of Ramachandra Iyer, C.J., and Rama-krishnan, J., in C.M.P. Nos. 3106 and 3940 of 1963. The judgment dealt with the two appeals. In one case the appeal was filed when under the law no appeal lay. In the second the appeal was filed on a misapprehension as to the existence of an order which did not in fact exist. The two applications were filed for refund of the court-fee paid on the memorandum of appeal on the ground that the fee had been paid by mistake. Section 70 of the Court-fees Act of 1955 was invoked. The learned Judges did not accept that contention and observed: "Section 70 of the Act will apply only to a case where the court-fee itself has been paid by mistake, that is, where it has been paid when no court-fee is payable or when a large fee amount has been paid while smaller amount alone would be the proper fee. In other words, the section applies only to a mistake or inadvertence in the payment of the court-fee and not to mistake in the initiation of proceedings on which the court-fee is paid in cases where such court-fee would be proper fee if those proceedings were held to be properly laid." 12. In other words, the section applies only to a mistake or inadvertence in the payment of the court-fee and not to mistake in the initiation of proceedings on which the court-fee is paid in cases where such court-fee would be proper fee if those proceedings were held to be properly laid." 12. They went on to refer to the cases in Nagaratnam, In re3, and Krishnamurthi alias Krishnananda Mudaliar, In re1 where it was held that even in cases which were not covered by sections 13 to 15 of the Court-fees Act, 1870, the Court could issue a certificate to the party setting out the circumstances under which the Court fee stamps paid by him were not utilised by the Court, thus leaving it to him to apply to the Government and obtain a refund if the Government were so pleased to grant it as an act on grace. They went on to observe: "The question is not a matter of any prestige of the Court, for, the Government seldom declines to honour such certificates. Discretionary as their power is, to grant refund in such cases, it will still be a duty they owe to the public. Further the fact that the Government will not be bound to grant the refund cannot deprive the Court of its inherent power of saying what has taken place here to enable the party to seek other remedies that he may have. If the Government chose not to grant a refund, it is not a matter with which this Court is concerned, for, we do not direct it to grant the Court-fee. We are therefore of opinion that it will be competent for this court in cases not covered by sections 66 to 70 of the Madras Court-fees Act, 1955, to grant a certificate to the party as to the circumstances under which the stamps came to be defaced. There will be no direction accompanying such certificate compelling the Government to make any refund either of the whole or part of the fee. It will, however, be open to the party to obtain this certificate and approach the Government for such relief as it may deem fit to grant in all the circumstances of the case. We accordingly ditect the Registrar to issue a certificate stating the circumstances under which the court-fee stamps in the instant case came be spoiled.“ 13. It will, however, be open to the party to obtain this certificate and approach the Government for such relief as it may deem fit to grant in all the circumstances of the case. We accordingly ditect the Registrar to issue a certificate stating the circumstances under which the court-fee stamps in the instant case came be spoiled.“ 13. We find that (in C.M.P. No. 3106 of 1963) the certificate was issued by the Registrar to the following effect: ”I do hereby certify that court-fee stamps of the value of Rs. 100 (Rs. one hundred only) have been paid in the said S.R. No. 28236 appeal under clause 15, Letters Patent, sought to be preferred against the judgment of this Court dated 29th June, 1962 and passed in A.A.O. No.1,42 of 1960 and that the Letters Patent Appeal has not been numbered or heard by this Court and that the said court-fee stamps of the value of Rs. 100 (Rs. one hundred only) have been punched and cancelled and have been duly defaced by the Office of the Registrar of this Court.“ 14. In Srimathi Periathayar v. Narasinga Rao1, a suit was filed by a landlord to evict the tenant when the provisions of the Madras Act (XVIII of 1960) were in force. The suit was competent then, but the suit abated by virtue of the later amendment by Madras Act (XI of 1964). The plaintiff prayed for refund of court-fee under those peculiar circumstances. Veeraswami, J., (as he then was) reiterated the principles laid down in Chidambara Chettiar, In re2, and observed: ”It follows that this Court has a limited power to order refund in exercise of its inherent power under section 151, Criminal Procedure Code, but it does not extend to cases other than the instance mentioned in Chidambaram Chettiar, In re2. 15. The learned Judge went on to refer to the decision of Panchapakesa Ayyar, J., in Nagaratnam, In re3, and observed: “The party can apply to the Government and ask for refund ex gratia and misericordia domni regis after deduction of the usual percentage, namely, one anna in the rupee or whatever it is.” 16. 15. The learned Judge went on to refer to the decision of Panchapakesa Ayyar, J., in Nagaratnam, In re3, and observed: “The party can apply to the Government and ask for refund ex gratia and misericordia domni regis after deduction of the usual percentage, namely, one anna in the rupee or whatever it is.” 16. The learned Judge felt that in that particular case refund of one half of the court-fee was reasonable and observed: “However, there should be no objection for the Court below to issue a certificate that the court-fee stamps on the plaint had been cancelled and that the suit as a result of the Amending Act (XI of 1964) had abated and could not be prosecuted by the petitioners, and one half of the court-fees may reasonably be refunded after proportionate deduction at ten paise a rupee.” 17. It will be seen that even on the above decision it was not directed that the certificate should say that the petitioner was entitled to a refund of the whole or any part of the court-fee. It was recognised that was undoubtedly in the discretion of the Government to grant refund or not. I find from the stock file maintained by the office of this Court that the certificate which was issued in a number of cases to the parties was also very limited in form already indicated in C.M.P. Nos. 3106 of 1963 and 3940 of 1963. For the first time a certificate adding the words that the appellant is entitled to refund of the court-fee appears to have been ordered only in Ramaswami Nadar v. State of Madras1, and C.M.P. No. 1009 of 1970. 18. For the sake of completeness I may refer to the decision of Ganesan, J., in Factors (P.) Ltd. v. Amalgamated Commercial Traders (P.) Ltd.2. There the petitioner filed a suit O.S. No. 4105 of 1965 for recovering a sum of Rs. 3,500 paying court-fee of Rs. 263. The defendant contended that the suit was not maintainable. The petitioner had already filed a suit O.S. No. 301 of 1964 including the claim of Rs. 3,500. Mentioning that fact he withdrew O.S.No. 4105 of 1965 and prayed for refund of the court-fee of Rs. 263. 3,500 paying court-fee of Rs. 263. The defendant contended that the suit was not maintainable. The petitioner had already filed a suit O.S. No. 301 of 1964 including the claim of Rs. 3,500. Mentioning that fact he withdrew O.S.No. 4105 of 1965 and prayed for refund of the court-fee of Rs. 263. The learned Judge reviewed the case law and held that he was not entitled to refund or even the limited certificate enabling the party to get refund from the Government ex gratia. So far as the actual decision of the case goes, no exception could be taken. But I should not be understood as agreeing with all the observations there, in particular that after the enactment of the Court-fees Act of 1955 the Court has no inherent power to order refund. That will be correct so far as the mistake or inadvertence or act of the party is concerned ; outside sections 66 to 70 of the Act he cannot ask for refund. But when he pays court-fee in excess as a result of the wrong order of the Court, the position is different. Section 12 (4) (d) envisages a case of the Court of appeal directing refund of the excess court-fee paid as a result of the wrong order of the lower Court. But cases may arise outside section 12 (4) (d) ; for instance, the Court, on a review of its earlier decision, may hold that a similar court-fee is sufficient. Justice would require the Court to order refund in such a case also. Such cases may be dealt with as they arise. 19. It also seems to me, with great respect to Ganesan, J., that the criticism of the judgment of Venkatasubba Rao, J., in Ramakrishnayya v. Seshamma3, is not justified. There the reversioner filed a suit attacking some alienations made by a Hindu widow The widow set up a will of her husband. The reversioner attacked the will. He paid court-fee for a declaration in regard to the will. Subsequently, he obtained a surrender of the estate from the widow and with the leave of the Court converted the suit into one for possession, paying a larger court-fee for the relief of possession. The reversioner attacked the will. He paid court-fee for a declaration in regard to the will. Subsequently, he obtained a surrender of the estate from the widow and with the leave of the Court converted the suit into one for possession, paying a larger court-fee for the relief of possession. He then applied for a refund of the court-fee paid on the relief of declaration in regard to the will on the ground that when the larger court-fee had been paid, the smaller court-fee was unnecessary. Venkatasubba Rao, J., repelled this prayer and observed that there is no force in this contention. As the plaint originally stood, the plaintiff rightly considered the relief relating to the deed as essential. The fact that by his having altered the suit and claimed a higher relief the prayer relating to the will has become since unnecessary, can make no difference whatsoever. With reference to this, Ganesan, J., observed: “With great respect to the learned Judge the proper question which should have been posed was whether court-fee paid was really payable or not under the provisions of the Act (VII of 1870) on the relief relating to the declaration in respect of the will; and the question did not depend upon the opinion of a plaintiff about the necessity of the reliefs in a suit; and if the view of the learned Judge has to prevail, it would be open to a plaintiff to give up a relief at a subsequent stage as being unnecessary and to claim refund on the ground that he had mistakenly thought at the time of institution of the suit that the relief was essential.” 20. It will be noticed that the reasoning of Venkatasubba Rao, J., is precisely that it would not be open to the plaintiff to give up a relief and claim refund. 21. It will be noticed that the reasoning of Venkatasubba Rao, J., is precisely that it would not be open to the plaintiff to give up a relief and claim refund. 21. In view of the fact that for nearly 20 years a certificate has been issued in cases similar to the present but confined, to a statement of the facts without any recommendation or expression of opinion that the appellant is entitled to a refund of the court-fee, such a limited certificate may and should be issued in this case also, but, for my part, I think it would not be right to go further and incorporate any opinion or direction that the appellants are entitled to a refund of court-fee or a portion thereof. Once it is recognised that it is entirely within the discretion of the Collector to grant refund or not, I think it would not be proper for this Court to express any opinion on that point. But it is unnecessary to pursue the matter further because Sri Balakrishnan appearing for the petitioners is content with a certificate in the limited form in which it was usually issued, merely stating that a court-fee of Rs. 200 was affixed to the appeal memorandum and that before it was numbered the appeal was settled out of Court and permission was granted to withdraw the appeal. There would be no expression of opinion whether the petitioners are entitled to a refund of the court-fee. 22.Gokulakrishnan, J.- I agree with the order passed by learned brother (Venkata-raman, J.) for the issue of a certificate in favour of the petitioner in this Civil Miscellaneous Petition. V.S. ---------- Certificate for Refund issued.