SAYERA BIBI Vs. BHUTNATH HALDAR

JUDGEMENT

(1.) This is an application for review of our judgment delivered in an appeal from appellate decree on the 17 December 1909. The application was presented on the ninetieth day, but Court-fees were paid to the extent of half the amount leviable on the memorandum of appeal. The question, therefore, requires consideration whether the application is sufficiently stamped. The answer depends upon the construction of Articles 4 and 5 of Schedule I to the Court Fees Act of 1870. Art. 4 provides that an application for review of judgment, if presented on or after the ninetieth day from the date of the decree, must be stamped with the fee leviable on the plaint or memorandum of appeal. Art. 5 provides that an application for review of judgment, if presented before the ninetieth day from the date of the decree, must be stamped with one-half of the fee leviable on the plaint or memorandum of appeal. The learned Vakil for the petitioner argues that as the eighty-ninth day was a Sunday and the Court was closed on that account, he has complied with the provisions of the law and is entitled to have his application heard although only half the Court-fees has been attached thereto. In support of this contention he has placed reliance upon the cases of Shazada Woola Gowhur V/s. Shah Rukh Begum 6 W.R. 19 and Narain Mundul V/s. Banee Madhub Sircar 12 W.R. 21 : 4 B.L.R. 32 (F.B.). In our opinion, neither of these cases is of any assistance to the petitioner. In so far as the first of these decisions is concerned, it. turned upon the construction of Section 877 of the Code of 1S59. That section provides that an application for review of judgment shall be made within ninety days from the date of the decree, unless the party preferring the same shall be able to show just and reasonable cause to the satisfaction of the Court for not having preferred such application within the limited period; if the application be made within the period above-mentioned, it shall be written on the stamp paper prescribed for petitions to the Court where a stamp is required; but if made after the expiration of that period, it shall be written on the stamp paper prescribed for plaints. The learned Judges, who heard the case of Shazada Woola Gowhur V/s. Shah Rukh Begum 6 W.R. 19, held that if the application was presented after the expiry of ninety days from the date of the decree, it might still be entertained upon payment of the stamp requisite for an application, provided the application was presented on the first open day after the expiry of a holiday which included the ninetieth day. It is not necessary for us to express any opinion as to the correctness or otherwise of this decision, because what we have now to do is to interpret Act VII of 1870, the provisions of which are materially different, because there was no provision in Act VIII of 1859 corresponding to section-14 of Act VII of 1870. This latter section provides that where an application for review of judgment is presented on or after the ninetieth day form the date of the decree, the Court, unless the delay was caused by the applicant's laches, may in its discretion grant him a certificate authorizing him to receive back from the Collector so much of the fee paid on the application as exceeds the fee which would have been payable had it been presented before such day. This provision justifies the inference that the Legislature intended strict compliance with Articles 4 and 5 and laid down that if a case was made out for special action under Section 14, the Court might pass necessary orders for relief of the party not in default.

(2.) In so far as the case of Narain Mundul V/s. Banee Madub Sircar 12 W.R. 21 : 4 B.L.R. 32 (F.B.), is concerned, it has clearly no application. No doubt, in that case the application for review as originally presented was insufficiently stamped, but the Court called upon the applicant to deposit the deficit fees, and this order was carried out. It does not appear to have been subsequently contended that the application, as it originally stood, was sufficiently stamped, and that was undoubtedly not the question referred for the decision of a Full Bench. "We must consequently, hold upon a true construction of Articles 4 and 5 of the Court-fees Act, 1870, that the application presented to us is insufficiently stamped. The view we take is supported by the decision of this Court in the case of In re Doorga Prosunno Ghosh 9 C.L.R. 479 and by that of the Madras High Court in the case of In re Kota 9 M. 139. We see no reason whatever to dissent from the view taken in these two decisions.

(3.) We may add that Section 5 of the Limitation Act of 1877 has obviously no application to cases under the Court Fees Act of the present description. It is equally clear that Section 10 of the General Clauses Act of 1897, is of no assistance to the petitioner, because it is applicable only to Acts of the Governor-General in Council and Regulations made on or after the 14th January 1887. Nor can it be contended, in view of the provisions of Section 14 of the Court Fees Act, that the general principle is applicable that a party may be taken to have done an act within the prescribed time if he has done it on the first day that the Court is open after the expiry of the holidays within which the prescribed time terminated. The petitioner must, therefore, deposit the deficit Court-fees in the course of this day.