ORDER
R.K. Verma, J.
1. This is an application for refund of Court-fees under Section 13 of the Court-fees Act filed by the successful appellant in first Appeal No. 1/76 (Radhakishan v. Mohanlal) which was allowed by Order dated 16-11-87 whereby the judgment and decree of the trial Court have been set aside and the case has been remanded to the trial Court with the direciion to re-admit the suit under its original number and to proceed to determine the suit afresh.
2. Section 13 of the Court-fees Act. 1870 in so far as, it is material, is as follows :--
''13. Refund of fee paid on Memorandum of Appeal :
If an appeal or plaint, which has been rejected by lower Court on any of the grounds, mentioned in the Civil P. C. is 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 by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of fee paid on the Memorandum of Appeal.'
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3. Section 351 of the C.P.C. of 1859 read as follows :--
''351. If the lower Court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact which shall appear to the Appellate Court essential to the rights of the parties, and the decree of the Lower Court upon such preliminary point shall be reversed by the decree in appeal, the Appellate Court may if it thinks right, remand the case, together with a copy of the decree in appeal to the lower Court with directions to restore the suit to its original number in the register, and proceed to investigate the merits of the case, and pass a decree therein.'
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4. The Code of 1859 was repealed and replaced by the Code of 1877, Section 562 of the 1877 Code was substantially in the same terms as Section 351 of 1859 Code. In the Code of 1882 there appears no change in the section and after the Code of 1882 was repealed and replaced by the Civil P. C. 1908 the corresponding provision appears in Order 41, Rule 23 of the 1,908 Code which has also provided for the remand of a case 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.
5. Thus. Section 13 of the Court-fees Act applied to a case of remand under the provisions of Order 41, Rule 23 of the Code.
6. By Section 87(xi) of the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976), a new Rule 23A providing for remand in other cases has been added in the Civil P. C., 1908 thus : (xi) after Rule 23, the, following rule shall be inserted namely :
'23A. Remand in other cases.
Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.'
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7. The instant case is admittedly a case of remand covered by Order 41. Rule 23A, C.P.C. since the trial Court from whose decree the First Appeal No. 1/76 was preferred, had disposed of the suit otherwise than on a preliminary point and this Court reversed the decree of the trial Court and ordered re-determination of the suit.
8. Rule 23A of Order 41 of the Code is a distinct and separate provision and not an amendment in Rule 23 of Order 41. C.P.C. and covers cases other than those mentioned in Rule 23, namely the cases of remand after reversal of decree in appeal where the original suit was disposed of otherwise than on a! preliminary point. As such, the remand under Order 41. Rule 23A is not the one contemplated in Section 351 of the 1859 Code which is referred to in Section 13 of the Court-fees Act. Therefore, the refund of Court-fees contemplated under Section 13 of the Court-fees Act is not available in a case of remand under Order 41, Rule 23A of the 1908 Code as amended by Act of 1976. The applicant, therefore, cannot be held entitled to refund of Court-fees, the instant case being a case of remand under Order 41. Rule 23A of the C.P.C. The above view taken by me is supported by a Division Bench decision of this Court in Kiran Electricals v. State Bank of Indore, AIR 1983 Madh Pra 110, wherein it has been held that Section 13 of the Court-fees Act, which deals with refund of Court-fees paid on the Memorandum of Appeal, expressly provides that refund shall be ordered when the suit is remanded on the grounds mentioned in Order 41, Rule 23, C.P.C. Section 13 of the Court-fees Act is, therefore, not attracted when the Appellate Court acts in exercise of the powers conferred by Order 41, Rule 23A, C.P.C. while remanding the case to the trial Court.
9. A similar view appears to have been taken in Smt. Shantaben Jerambhai Chavda v. Lallubhai Jerambhai Chavda, AIR 1980 Guj 152. A decision of the Supreme Court in State of Uttar Pradesh v. Chandra Bhushan Misra (AIR 1980 SC 591) has been cited on the question of refund of Court-fees under Section 13 of the Court-fees Act. In that case it has been held that refund of Court-fees can be ordered under Section 13 in a case remanded in the interest of justice as provided by amended Rule 23 of Order 41, C.P.C. The amendment of Rule 23 had been made by the Allahabad High Court 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.
10. But the authority of Chandra Bhusan Mishra's case (supra) in my opinion, would not be attracted in the instant case, where the case has been remanded under Rule 23A, which is distinct and different from Rule 23 of Order 41, C.P.C. The Civil P. C. Amendment Act, 1976 has provided for a separate Rule 23A to cover cases of remand other than those covered by Rule 23. Section 351 of the Civil P.C. of 1859, which finds mention in Section 13 of the Court-fees Act providing for the refund of Court-fee on Memorandum of Appeal, corresponds to Rule 23 of Order 41, C.P.C. and not to Rule 23A thereof. It is strange that although the Code of Civil Procedure of 1859 was replaced by several new enactments viz., the Code of 1877, 1882 and now of 1908, the mention of Section 351 of the Code of 1859 has continued to exist in Section 13 of the Court-fees Act and no corresponding amendment has been made in that behalf so as to bring the position up-to-date and correspond with appropriate provision of the C.P.C., 1908. If in view of the provisions of the Civil P.C. 1908 as amended by the Amendment Act, 1976, the Legislature considers it appropriate to provide for refund of court-fee paid on Memorandum of Appeal in cases of remand covered by Rule 23A also necessary amendment in that behalf in Section 13 of the Court-fees Act would be called for, appropriately amending reference to Section 351 mentioned in that Section. In any case, for the sake of clarity an amendment in Section 13 of the Court-fees Act is essential so as to remove the outdated reference to Section 351 mentioned therein by appropriate amendment.
11. In view of the discussion aforesaid, this application for refund of Court-fees, deserves to be dismissed and is hereby dismissed. There shall, however, be no order as to costs.