Civil Appeal No. 2614 of 1969.
From the Judgment and Order dated 20 12 1967 of the Allahabad High Court in Second Appeal No. 3105 of 1963.
G. N. Dixit and O. P. Rana for the Appellant.
Ex parte for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
A second appeal under section 100 of the Code of Civil Procedure 1908 was allowed by the Allahabad High Court and the matter was remanded to the Lower Appellate Court for fresh disposal in accordance with law point.
The order of remand was made under the provisions of Order XLI Rule 23 of the Civil Procedure Code 1908, as amended by the Allahabad High Court.
The 1132 successful appellant before the High Court filed an application under section 13 of the Court Fees Act, 1870 claiming a refund of the Court Fees Act, 1870 claiming a refund of the Court fee paid in the Second Appeal.
The application came before G. C. Mathur, J., who entertained a doubt whether section 13 of the Court Fees Act applied to a case of remand under the provisions of Order XLI Rule 23 Civil Procedure Code as amended by the High Court and referred the question for the consideration of a Full Bench.
Thereafter the application was heard by the Full Bench consisting of Jagdish Sahai, Pathak and Kirty, JJ.
Pathak and Kirty JJ., took the view that refund of Court Fee could be ordered under section 13 of the Court Fees Act, even where the remand was made under the amended provisions of Order XLI Rule 23.
Jagdish Sahai, J. dissented.
In accordance with the opinion of the majority, the court fees paid by the appellant before the High Court was directed to be refunded.
The State of U.P. obtained a certificate under Article 133(1)(c) of the Constitution and has preferred this appeal.
Section 13 of the Court Fees Act 1870, in so far as it is material is as follows: "If an appeal or a plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure as ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in section 351 of the same code for a second decision of a lower court, the lower court shall grant to the appellant a certificate, authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal".
Section 13, thus speaks of a suit remanded in appeal on any of the grounds mentioned in section 351 of the same Code i.e. the Code of Civil Procedure which was then in force.
Section 351 of the Code of Civil Procedure 1859 provided for the remand of a case by the appellate court to the lower court for a decision on the merits on the case.
where "the lower court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact whish shall appear to the appellate court essential to the rights of the parties".
If the decision on the preliminary point was reversed by the appellate court.
The Code of 1859 was repealed and replaced by the Code of 1877.
Section 562 of the 1877 Code was substantially in the same terms as section 351 of the 1859 Code.
The Code of 1882 was repealed and replaced by the Code of Civil Procedure 1908.
Order XLI Rule 23 of the 1908 Code also provided for the remand of a case 1133 to the lower court by the appellate court where the suit had been disposed of upon a preliminary point and the decision of such preliminary point was reversed in appeal by the appellate court.
In exercise of the powers vested in it under section 122 of the Code of Civil Procedure 1908, the Allahabad High Court amended the provisions of Order XLI Rule 23 so as to provide for the remand of a case by the appellate court to the trial court, not only when the suit had been decided upon a preliminary point and the decision was reversed in appeal, but also whenever the appellate court considered it necessary in the interest of justice.
The question for consideration in this appeal is whether the power to grant refund of court fees under section 13 of the Court Fees Act 1870 was attracted to a case where the appellate court remanded the case to the lower court in the interest of justice as provided by the provisions of Order XLI Rule 23 as amended by the High Court of Allahabad.
In order to answer the question a reference is necessary to section 158 of the Code of Civil Procedure 1908.
It was as follows: "158.
In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, Section or rule".
It follows from Section 158 that reference in Section 13 of the Court Fees Act 1879 to Section 351 of the Code of Civil Procedure 1859 has to be read as reference to Order XLI Rule 23 of the Code of Civil Procedure 1908.
The submission of the learned counsel was that the reference to any provision of the Code of Civil Procedure 1908 pursuant to section 158 of the Code must be to provision occurring in the body of the main code consisting of the provisions from section 1 to section 158 and not to the provisions of the rules in the first schedule.
He further submitted that even if reference to the rules in the first schedule was permissible it should only be to the rules as enacted by the legislature itself and not as amended by the High Court.
The first part of the submission of the learned counsel has to be rejected straightaway having regard to the express reference to 'Order ' and 'Rule ' in section 158 of the Code of Civil Procedure 1908.
The second part of the submission requires a slightly closer examination.
Section 2(1) of the Code of Civil Procedure 1908 defined "Code" as including 1134 "Rules".
Section 2(18) defined "Rules" as meaning "Rules and forms contained in the first schedule or made under section 122 or section 125".
Section 121 of the 1908 Code declared that the rules in the first schedule shall have effect "as if enacted in the body of the code until annulled or altered in accordance with the provisions of part X of the Code" (section 121 to 131).
Section 122 enabled the High Court to make rules, from time to time "regulating their own procedure or the procedure of the Civil code subject to their superintendence, and made by such rules, annual, alter or add to all or any of the rules in the first schedule".
Section 126 made the rules made by the High Court subject to the previous approval of the Government of the State.
Section 127 provided that the rules so made and approved shall have the same force and effect as if they had been contained in the first schedule.
These provisions make it abundantly clear that the rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore, necessarily became part of the Code for all purposes.
That is the clear effect of the definition of the expressions "Code" and "Rules" and sections 121, 122 and 127.
It does not appear to be necessary to embark upon a detailed examination of each one of these provisions, since the position appears to us to be very clear.
We, therefore, agree with the view expressed by Pathak and Kirty JJ., in Chandra Bhushan Misra vs Smt.
Javatri Devi(1), regarding the effect of section 158 of the Code of Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127.
Jagdish Sahai J., was inclined to the view that the amendments made by the High Court were only fictionally embodied in the Code and that the reference to section 351 of the Code of 1859 in section 13 of the Court Fees Act was to be construed as a reference only to the provisions of Order XLI Rule 23, as originally passed by the Legislature and not as amended by the High Court.
In our opinion the view of Jagdish Sahai, J. does not give full effect to section 127 of the Civil Procedure Code 1908 which provided that the rules made by the High Court shall have the same force and effect as if they had been contained in the first schedule.
We are of the view that the question was rightly answered by the Full Bench of the Allahabad High Court and the appeal is, therefore, dismissed.
P.B.R. Appeal dismissed.

Summary:
A second appeal under section 100 Code of Civil Procedure 1908 was allowed by the Allahabad High Court and the matter was remanded by the High Court under Order XLI, Rule 23 CPC as amended by the High Court to the Lower Appellant Court for fresh disposal in accordance with law.
A majority of the Division Bench allowed the respondents claim for refund of the court fees on the view that refund could be ordered under section 13 of the Court Fees Act even where the remand was made under the amended provisions of Order XLI, Rule 23.
In appeal it was contended that even if reference to the rules in the first schedule was permissible it should only be to the rules as enacted by the legislature and not as amended by the High Court.
^ HELD: A conspectus of the relevant provisions of the Code of Civil Procedure 1908 makes it clear that the rules made by the High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore necessarily become part of the code for all purposes.
That is the clear effect of the definition of the expression 'code ' and 'rules ' and sections 121, 122 and 127 of the Code of Civil Procedure, 1908.
[1134 C E] Chandra Bhushan Misra vs Smt.
Javatri Devi A.I.R. (56) 1969 Allahabad 142 approved.