IBRAHIM ALI Vs. AHSAN HUSSAIN

JUDGEMENT

(1.) 1. The applicant was one of the defendants in suit brought by the first eight non-applicants for possession of property in Jubbulpore and for a declaration. A decree was passed in favour of the plaintiffs in that suit, and that decree was confirmed by our judgment of 17th February 1931, the appeal of the present applicant and the other defendants being dismissed; in our judgment we directed that costs of the appeal should be borne by the appellants. The applicant was interested in only one item of the property and in the suit it was ordered that the plaintiffs' costs should be paid by the first three defendants, whilst the other defendants including the present applicant should only bear their own costs. In the appellate judgment we made no distinction, as all the defendants made a joint appeal, and we directed that costs of the appeal should be borne by the appellants.

(2.) THE applicant was aggrieved by this order and stated that, as he is the only solvent one of the defendants, the plaintiffs are recovering all the costs of the suit from him, although really he was interested in only one small portion of the property in suit. He accordingly made an application purporting to be under Sections 151 and 152, Civil P. C for amendment of the decree. We held, by our order of 24th July 1931 that there was no question of invoking the inherent power of the Court, nor was there any clerical or arithmetical mistake in the judgment or decree, and we therefore dismissed the application, holding that the applicant's remedy, if any, was by way of a review. The applicant has now made an application for review under Order 47, Rule 1, for amendment of the order as regards costs. The learned Counsel for the non-applicants raised a preliminary objection that court-fees were not properly paid, as a stamp of only Rs. 85 had been paid, whereas under Article 4, Schedule 1, Court-fees Act the court-fees payable were the same as those leviable on the plaint or the memorandum of appeal, which in the present ease was Rs. 1,085. The learned Counsel for the applicant, on the other hand, contended that the fee payable was only the fee payable on the relief which he now claimed in his application for review and that the words "leviable on the plaint or memorandum of appeal" in Article 4, Schedule 1 should be read as the fee "leviable if the application were treated as a plaint or memorandum of appeal."

(3.) WE therefore hold that the court-fees paid upon this application for review are insufficient and that the full court-fees payable on the memorandum of appeal should be paid under Article 4, Schedule 1, Court-fees Act. We grant the applicant one month's time in which to pay such fees. We may here note that the learned Counsel for the non-applicant also opposed the application on the ground that it was barred by time under Article 173, Lim. Act, having been presented more than 90 days after the date of our appellate decree. We are of opinion however that in view of the facts stated, viz., that the applicant had already made an application under Section 151, Civil P. C., we have power to enlarge the time and to admit the present application under Section 5 of the Act, and we admit it accordingly. If however the requisite court-fees are not paid within one month of the date of this order, the application will stand dismissed.