GOPALAN NAIR Vs. BHASKARAN

JUDGEMENT

(1.) This is an application by the appellant in the appeal invoking S.151 read with S.148 and 149 of the Code of Civil Procedure. The prayer in this petition is for restoration of the appeal dismissed for default for non payment of the balance court fee payable under the second proviso to S.52 of the Kerala Court Fees and Suits Valuation Act and to allow the petitioner to remit the balance court fee by enlarging the time therefor. This application is opposed by the respondent on the ground that it is not maintainable and on the further ground that no ground is made out on merits for allowing the prayer.

(2.) This Court admitted this appeal on 7.12.1999 after preliminary hearing in terms of O.41 R.11 of the Code of Civil Procedure. Under S.52 of the Kerala Court Fees and Suits Valuation Act, hereinafter referred to as the Court Fees Act, the full court fee payable on an appeal need not be paid while instituting the appeal or presenting the appeal. Only one third of the fee payable need be paid. It may be better to quote the relevant proviso to S.52 of the Court Fees Act:

(3.) In In re N. Kayambu Pillai ((28) AIR 1941 Mad. 836 ), a Full Bench of the Madras High Court held that an order dismissing an appeal for non payment of Court Fee is not a decree under S.2(2) of the Code of Civil Procedure and the same is a dismissal for default within the meaning of S.2(2) of the Code. It was held by Chief Justice Leach, speaking on behalf of the Full Bench, stated: -