GAJADHAR BHAGAT Vs. MOTI CHAND BHAGAT

JUDGEMENT

(1.) This is an appeal by the defendants from a decision of the learned District Judge of Purnea dated 2 June, 1939 confirming a decision of the Munsif of Araria dated 26 August 1938.

(2.) The suit having been decreed against the appellants, they filed an appeal before the learned District Judge. The last day of limitation for this appeal was 10 October 1938. At that time the Court was closed for the annual vacation, and the appeal was accordingly filed on the re-opening day, 26 October 1938. It was filed on a court-fee of only Re. 1, there being a deficit court-fee of Rs. 36-8-0. When this appeal was filed, the order of the District Judge was: There is no prayer for time to file the deficit, court-fee. The memorandum of appeal filed with a nominal court-fee is rejected.

(3.) The defendants did not appeal against this order, and I do not think it is necessary for me to decide whether they could have appealed against it or could not. In Jnanadasundari Saha V/s. Madhabchandra Mala , it was held that an order rejecting a memorandum of appeal, written on paper insufficiently stamped, for non-payment of the deficit court-fee within the time allowed by the Court, is not a decree within the meaning of Section 2, Civil P.C. The rejection of a memorandum of appeal by the appellate Court would not, of its own force, preclude the appellant from presenting a fresh memorandum on proper court-fee. As against that, however, I find that there are cases of this Court where an appeal has been entertained and allowed on the ground that the insufficiently stamped memorandum had been rejected summarily without giving an opportunity to the appellant to explain or to make good the deficiency within a stated time.