LAWS(P&H)-1987-3-56

MUNSHI RAM Vs. ISHWAR DATT

Decided On March 02, 1987
MUNSHI RAM Appellant
V/S
ISHWAR DATT Respondents

JUDGEMENT

(1.) THE plaintiff-respondents filed the suit for possession by way of ejectment, which was dully decreed by the trial Court on November 3, 1983. Appeal against the said judgment and decree of the trial Court was filed on December 8, 1983 and it was duly entertained. However, when the case came up for hearing on June 14, 1985, an objection was raised on behalf of the plaintiffs-respondents that proper Court-fee had not been paid on the memorandum of appeal. As a result, the defendant-appellate moved application dated July 17, 1985, purporting to under Section 149, Code of Civil Procedure (hereinafter called 'the Code'). Reply to the same was filed on behalf of the plaintiffs-respondents. Ultimately, the learned District Judge, Ambala, vide order dated September 6, 1985 dismissed the said application. As a result, the memorandum of appeal was rejected. According to the learned District Judge, it was not a case where the mistake was not committed bonafide and in good faith. Dissatisfied with the same, the defendant filed this second appeal in this Court.

(2.) A preliminary objection has been raised on behalf of the plaintiffs-respondents that no appeal against the impugned order of the District Judge rejecting the memorandum of appeal is maintainable as the same was not a decree. In support of contention, the learned counsel relied upon the Division Bench judgment of this Court in Des Raj v. Om Parkash, 1985 Revenue Law Reporter 401. In view of the said Division Bench judgment wherein it was held that an order dismissing an appeal after dismissal of application under Section 5, Limitation Act, is not a decree within the meaning of Section 2(2) of the Code, the present appeal against the impugned order of the District Judge is not maintainable. Under the circumstances, the same is treated as a civil revision petition.

(3.) AFTER hearing the learned counsel for the parties and going through the case law cited at the bar, I do not find any justification to interfere with the judicial discretion exercised by the appellate Court; particularly, when the plaintiffs have already taken possession of the suit property in execution of the decree of the trial Court. Moreover, in the application filed under Section 149 of the Code, before the Court below, no satisfactory reason was given for not paying the proper Court fee while filing the appeal on December 8, 1983.