MUHAMMEDKUTTY Vs. KUNJAMMA

JUDGEMENT

(1.) Appellant in A.S. No. 47/76 on the file of Subordinate Judge's Court, Mavelikara is the petitioner in this Civil Revision Petition. On account of non payment of the deficit court fee on the Memorandum of Appeal, the appeal was dismissed on 17-10-1980. On 24-10-1980 appellant filed I. A. No. 1557/80 praying for restoration of appeal to file. The said application was purported to be one filed under S.151 of the Code of Civil Procedure. The learned Subordinate Judge dismissed that application by his order dated 3-1-1981 holding that such a restoration application will not lie. The correctness of that order is in challenge.

(2.) S.107(2) of the Code of Civil Procedure reads as follows:

(3.) The learned counsel appearing for the revision petitioner brought to my notice certain decisions in support of his contention that in situations similar to the one before me, the proper remedy for the aggrieved appellant can only be a petition under S.151 of the Code. The first decision relied on by the learned counsel is Ningappa v. Chandra (AIR 1942 Bom. 198). In that case the appellant did not deposit the costs for preparation of paper book. ' On that ground the appeal was dismissed. The appellant then filed application to restore the appeal. The Appellate Court took the view that such an application would not fall under O.41 R.19. It further held that the appellant was not entitled to invoke the help of the inherent jurisdiction under S.151. Dealing with this matter the High Court took the view that O.41 R.19 does not exhaust the powers of the Court in proper case to readmit an appeal dismissed for default and it is open to the Court to exercise its inherent powers, to deal with these matters, under S.151 C.P.C. The next decision is Mrs. Minnie Lal v. Mahadeo Lall (AIR 1949 Patna 112). There, on account of the appellant's failure to comply with a peremptory order to pay the printing costs of the appeal, the appeal was dismissed for default. A petition under O.41 R.19 of the Code was filed for restoring the appeal to file. The Court held that such an application will not come within the provisions of O.41 R.19 and it can be entertained only under S.151 of the Code. Lastly decision in Biswanath v. Amar Nath ( AIR 1962 Cal. 110 ) was relied on. There also the appeal was dismissed for non payment of the costs of the paper book. When that appeal was sought to be restored to file, the Court held that the application for that purpose will fall under S.151 and not under O.41 R.19.