Mukerji and Bennet, JJ.@mdashThis is a reference under Order XLVI, Rule 1, of the CPC made by the learned Subordinate Judge of Mainpuri in regard to an application made to him for a refund of Rs. 10 court fee excess, paid by inadvertence. The applicant had paid Rs. 195 court fee on a plaint, by an arithmetical error, apparently, for Rs. 185. The learned Subordinate Judge was in doubt as to whether he could issue a certificate under chapter 17, Rule 28, of the General Rules (civil) for courts subordinate to the High Court. His doubt arose because of a letter, No. 2541 VS--273-B, dated the 18th of December, 1926, from the Registrar of the Board of Revenue, United Provinces, to the Collector of Mainpuri, stating in a similar case that the refund was not allowable unless there was a special hardship which might be referred to Government, and returning a certificate of the Subordinate Judge of Mainpuri.
2. We have heard the learned Government Advocate on behalf of the revenue authorities. The applicant has not been represented. It is clear that there is no specific section of the Court Fees Act or any specific rule under which such a refund can be ordered by a civil court. The question is whether the civil court should resort to its inherent power u/s 151, Code of Civil Procedure, treating this as an order necessary for the ends of justice. We consider that the applicant ought in justice to receive the Rs. 10 excess which he has paid by inadvertence. If the applicant had paid too small an amount, the court would have recovered the necessary deficiency from him. This subject has come before the courts for a number of years and the earliest case is that of In the matter of Grant (1870) 14 W.R., 47. in which a refund of excess duty paid by inadvertence on an appeal was ordered by the High Court. In Harihar Guru v. Ananda Mahanty ILR (1912) Cal. 365 the High Court directed the taxing officer to issue a certificate to enable an applicant to obtain a refund of excess court fee paid. Similarly in Chandradhari Singh v. Tippan Prasad (1918) 3 Pat. L.J. 452., the Patna High Court, acting u/s 151, Code of Civil Procedure, held that the courts have inherent power to pass orders directing the refund of excess court fee paid by mistake.
3. We agree with the view held by the Calcutta High Court and the Patna High Court and accordingly we hold that u/s 151, Code of Civil Procedure, the subordinate courts have power to issue certificates directing the refund of court fees paid in excess by inadvertence. Accordingly we return this reference to the learned Subordinate Judge with the direction that he should issue the necessary certificate. No order is required as to costs.
