BIBI ALIQUNNISSA Vs. SK SHAFIQUE

JUDGEMENT

(1.) The question raised in this case is whether this application for the restoration of Second Appeal no. 254 of 1949, which stood dismissed for failure to deposit deficit court-fees, is maintainable under Section 151, Civil P. C., or can only be entertained as a petition in review,

(2.) The petitioners are tbe plaintiffs in a suit for partition. Their suit was decreed in part. The decree was upheld by the Court of first appeal. They then came in appeal to this Court. In the Courts below they paid merely a declaratory court-fee. The Stamp Reporter in this Court objected that, as regards a portion of tbe property forming the subject-matter of the suit, the suit was of the nature of a title suit, and therefore an ad valorem, court-fee was payable. The report was accepted by the Taxing Officer, and the necessary court-fees on the memorandum of appeal wag paid. When the appeal came before the Bench, the stamp report as to the liability to pay the deficit court-fee in the Courts below being accepted by the learned advocate for the appellants, a direction was made that, failing deposit of the deficit court-fee within two months the appeal would stand dismissed. This order has become final. Hence, the present application.

(3.) The maintainability of this application under Section 151 is challenged on the authority of Rameshwardhari Singh v. Sadhu Saran Singh, 2 Pat. 504 : (A. I. R. (10) 1923 pat. 854), Ganga, Prasad v. Sm. Girja Devi, A. I. R. (36) 1949 pat. 366 : (29 P. L. T. 354) and certain unreported cases. The learned advocate for the petitioners has rightly distinguished these cases, on the ground that the two reported cases are cases in which a plaint was dismissed for default is paying the deficit court-fee on the plaint itself and, in Miscellaneous Judicial Case No. 178 of 1948 and second Appeal No. 503 of 1947, the deficit in court-fee was on the memorandum of appeal. First Appeal No. 102 of 1918 wag decided on its own peculiar facts, namely, that the petitioner by his conduct had accepted his petition as one in review.