GOMTI DEVI Vs. HARI SHANKER

JUDGEMENT

(1.) THIS is a plaintiffs second appeal arising out of a suit filed by the plaintiff appellant against the defendant respondent under O. XXXIV, R. 4, C. P. C. for enforcement of the mortgage deed dated 15th July 1950. The suit was filed in forma pauperis on 11th July 1963. During the hearing of the application under O. XXXIII, R. 7, C. P. C. and after one of the plaintiff' s witnesses was examined on 20th February 1965 the plaintiff appellant gave a statement before the court that she was then in a position to pay the court-fee and two months' time be granted to her for the said purpose. On the same date the Civil and Sessions Judge, Mirzapur, before whom the said application was pending, passed the following order : " The applicant is now prepared to pay court-fee. Application to sue as pauper is dismissed. Court-fee should be paid within two months."

(2.) ON 20th April 1965 the plaintiff appellant again moved an application for grant of fifteen days' further time to pay the court-fee. This application was allowed and therefore on 5th May 1965 the plaintiff appellant paid the requisite court-fee and the application was thereafter ordered to be registered as a suit on 8th May 1965.

(3.) AGGRIEVED by the judgment of the trial court civil appeal No. 15 of 1967 was filed by the respondent. The lower appellate court only considered one issue in appeal, viz. as to whether the suit was barred by time or not. The lower appellate court came to the conclusion that the trial court had no jurisdiction to grant further 15 days time subsequent to the dismissal of the application to sue in forma pauperis and as such the suit was barred by time. In view of the above finding the suit was dismissed and the appeal was allowed on 13th September 1967. Against the judgment of the lower appellate court the present appeal has been filed in this Court.