Panchapakesa Ayyar, J.
1. This is a petition filed by Mr. M. Seshachalapathi, under Section 151, Civil P. C., for a direction to refund the court-fee of Rs. 149-15-0 paid by the petitioner, Nagaratnam, in an unnumbered Second Appeal, S. R. No. 40609 of 1948, sought to be presented to this Court against A. S. No. 310 of 1947 on the file of the Sub-Court, Guntur. The facts are briefly these. Nagaratnam, Mr. Seshachalapati’s client, wanted to file a second appeal against the judgment and decree in A. S. No. 310 of 1947, and, therefore, filed S. R. No. 40609 of 1948, with the correct court-fee of Rs. 149-15-0, due on the valuation given therein, on 22nd November 1948. That S. R. was returned to the petitioner on 10th February 1949 for 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. She re-presented S. R. No. 40609 of 1948 only on 3rd August 1949 and with a petition claiming a refund certificate for the court-fee paid by her as she had already settled the matter.
2. The question, therefore, is whether this Court should grant her a refund certificate for Rs. 149-15-0, the court fee paid on the appeal memorandum, or whether it should refuse the petition altogether, or grant any other relief possible under Section 151, Civil P. C.
3. It has been held in Thammayya Naidu v. Venkataramanamma, 55 Mad. 641 at p. 644 : (A. I. R. (19) 1932 Mad. 438) that a Court’s power to allow the refund of court-fee stamps is not confined in Sections 13, 14 and 15, Court-fees Act, and that, under Section 151, Civil P. C., it has got some more though strictly limited, powers. In re Chidambaram Chettiar, 57 Mad. 1028 : (A. I. R. (21) 1934 Mad. 566), a later case, we see what these powers under Section 151 are. It has been held there that a Court can order refund of the court-fees, under Section 151, where there is an excess payment made by mistake or where on account of the mistake of the Court a party has been compelled to pay court-fees either wholly or in part. It was definitely held in that case that, outside these cases, a Court had no power to order refund, under Section 151. In C. M. P. Nos. 4439 to 4442 of 1941 (unreported) Leach C. J. and Happell J. in four petitions almost identical in nature with the present one, for the exercise of the inherent power of the Court, under Section 151, Civil P. C., to refund the court-fees paid in certain appeal memoranda, not numbered as appeals because of the reluctance to pay the deficit court-fee rightly demanded, have remarked that there is no provision in the Court-fees Act, on which the petitioners could rely for a refund of the court-fee paid on the appeal memoranda filed by them and withdrawn by them before numbering. They went on to say:
“The petitioners are asking something which the Court has no power to grant them. In re Chidambaram Chettiar, 57 Mad. 1028: A. I. R. (21) 1934 Mad. 566), a Bench of this Court held that the Court has no power to order a refund of court-fees except in three cases, namely, (1) where the Court-fees Act applies, (2) where there is an excess payment made as the result of a mistake and (3) where on account of the mistake of the Court a party has been compelled to pay court-fees either wholly or in part. A decision to the same effect was given by another Bench of this Court in re Kappini Gounder, 1937-2 M. L. J. 788: (A. I. R. (25) 1938 Mad. 67). These decisions are binding on us and provide the answer to these applications which will be dismissed.”
The present case falls within the scope of the above decision of Leach C. J. and Happell J. and this Court has no power to grant a certificate for the refund of the court-fees, since it is obvious that the Court-fees Act will not apply, and the petitioner did not pay by mistake any excess court-fee, and no court-fee was collected from the petitioner by a mistake of the Court. It is a case where the petitioner wanted to file a second appeal and so filed a memorandum of appeal affixing the proper court-fee stamps but then compromised with the other side and made the second appeal unnecessary by such compromise. So, the request to giant a refund certificate is rejected.
4. 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 this purpose alone, a certificate will be granted to the petitioner, as requested by him, that the second appeal was not numbered 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 P. C. 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, returned to him for prosecuting his ex gratia and misericordia domini regis application to the Government, if so advised.