U CO BANK COLLEGE SQUARE Vs. KHETRAMANI MOHANTY

JUDGEMENT

(1.) THESE two Misc. Cases have been filed by the U. Co. Bank (previously known as United Commercial Bank), the sole appellant in First Appeal No. 281 of 2000.

(2.) THE appellant petitioner's suit for Rs. 9,60,511.55 against respondent defendant No. 1 Mrs. Khetramani Mohanty and respondent defendant No. 2 Urban Co operative Bank, College Square Branch, Cuttack has been preliminarily decreed in part for Rs. 6,58,711.55 on contest against defendant No. 1 and ex parte against defendant No. 2 and the claim of defendant No. 1 for set off has been decreed in part to the extent of Rs. 3,03,800.00 by the Second Additional Civil Judge (Senior Division), Cuttack vide his judgment dated 12.5.2000.Being aggrieved by the said judgment, the appellant filed the First Appeal affixing court fee of Re. 1.00 only on 3.11.2000. According to the plaintiff appellant, the court fee payable was Rs. 10,336.66. The appellant filed an application under Section 149 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') being Misc. Case No. 751 of 2000 praying for grant of eight weeks' time to pay the deficit court fees on the ground that after obtaining permission from the controlling officer the appeal was filed on 3.11.2000 to save delay and the appellant was not ready to pay the required court fees immediately. A second application was also filed on 7.9.2001 under Section 149 CPC being Misc. Case No. 713 of 2001 after payment of the deficit court fees on 10.4.2001 praying for extending the time for payment of the required court fees till that date.

(3.) AFTER filing of the First Appeal on 3.11.2000 along with an application under section 149 CPC (Misc. Case No. 751 of 2000) for extension of time to pay the required court fees, there was no move to list the matter for consideration of the said application and hence the matter was not listed until 3.9.2001. After the appellant filed an application under Order 40 Rule 1 CPC (Misc. Case No. 682 of 2001) and another application under Order Rule 39 Rule 1 CPC (Misc. Case No. 683 of 2001) on 29.8.2001 praying for appointment of a third party receiver with regard to the mortgaged property and for injunction against defendant respondent No. 1 restraining her from alienating or transferring the mortgaged property, the matter was listed on 3.9.2001 before this Court and the Stamp Reporter was directed to calculate the period of limitation and report if there was any delay in filing the appeal. After calculation, the report of the Stamp Reporter was to the effect that the appeal had been filed in time.