TMI Blog1954 (11) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants paid were the court-fees regulated by the amendment to the Court-fees Act which came into force on 1-4-1954. As it is well known, on that date the whole system of charging court-fees in the High Court on the Original Side was altered and instead of a fixed fee to be payable on the plaint 'ad valorem' fees became leviable as in the districts. The contention of the applicants is that at the date when the suits were filed the court-fee leviable was a fixed fee. At that date they had a vested right of appeal and that vested right has been impaired by a higher burden being thrown upon them tor preferring an appeal to this Court. It is urged that if they had paid the court-fees on the basis of the fees payable when the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the question raised in that Civil Reference and the question raised in these applications is identical. In both cases the question was whether a retrospective effect should be given to the amended Court-fees Act and also whether the additional court-fees constituted a burden upon the appellant which impaired his right of appeal. 4. Now, we have heard the elaborate arguments of the Advocate General and we are of the opinion that the decision given in 'Reference under Section 5, Court-fees Act (A)' should stand. We will only refer to two or three new authorities that have been cited by the Advocate-General. It is unnecessary in our opinion to set out in full all the arguments and our views on those arguments because they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit conferred by the earlier notification of 1881, and had there been any intention to reserve the benefit of that notification to documents in suits preferred before 1-12-1885, when the notification came into force, they would have expected to find a distinct reservation to that effect. Now, the Advocate-General argues that this decision is directly in point, and although at the date when the suit was filed the plaintiff would have had the right of appeal without paying any court-tees at all, when he actually came to file the appeal he became liable to pay half the court-fees, and the Court decided that his liability must be adjudicated as at the date when the appeal was preferred and not at the date when the suit was filed. Now, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entation, and that the original valution under a law obsolete at the period of appeal can have no influence on the decision. With very great respect, we are unable to agree with this opinion. It is not a reasoned decision, and it seems to us that it is in conflict with the decision of the Supreme Court which is referred to in 'Reference under Section 5 Court-fees Act', (A). Dealing with what the Madras High Court calls the obsolete law, the Supreme Court points out that the old law continued to exist for the purpose of supporting the pre-existing right of appeal and the old law must govern the exercise or enforcement of that right of appeal, and relying on that observation of the Supreme Court -- 'Hoosein Kasam Dada (India) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amended Court-fees Act calculated as if the application for review were a plaint or memorandum of appeal for the relief sought for. In our opinion there is a vital distinction between an application for review an appeal. An appeal is a vested right that right is a substantive right. There is no vested right in a litigant to prefer an application for review, and therefore when an application for review is filed, it is an independent proceeding which is initiated by the litigant and therefore the Court-fees which are payable on an application for review are the Court-fees which are leviable in law at the date when that application for leview is filed. 9. The question has also been discussed as to what is the position of a defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal arising out of the set-off or the counterclaim would also be liable to pay Court-fees which were leviable at the date when the set-off or counter-claim was filed. It is unnecessary to point out that the right of appeal in respect of a set-off or counter-claim would not be regulated by the date of the suit. The set-off or counter-claim must be looked upon as a fresh suit, Therefore no difficulty arises with regard to a question of set-off or counter-claim. 10. The result is that in both these applications we will make an order under Section 151 and direct that any excess paid by the appellants over and above the Court-fees payable on these appeals when the respective suits from which these appeals were filed should be refunded. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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