PRIYA NATH BACHHER Vs. MIANJAN SARDAR

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge, first Court, Alipur, affirming the decision of the first Munsif at Sealdah. The suit was for-recovery of money and it was presented in the Small Cause Court at Sealdah on the 18th April 1911. That Court had no jurisdiction, so it was returned on the 19th. On the same date it was presented to the Munsif s Court. On the 29th of April an order was made on the plaintiff to pay the deficit Court-fees within a week. This was followed by several other orders providing for payment on later dates. Ultimately there was an order on the 7th August under which the balance was to be paid within five days. In fact it was paid the next day, the 8th August. Notwithstanding this, it has been held that the suit was not within lime and must be dismissed. This appears to me to be an erroneous reading of Section 149 of the Code, which provides for the power to make up deficiency of Court-fee and for that purpose vests the Court with powers, in its discretion, at any stage to allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee, and upon such payment the document, in respect of which such fee is payable, is to have the same force and effect as if such fee had been paid in the first instance. In this case we have such an order as Section 149 contemplates and there was payment in conformity with the terms of the order. So that I can see no reason why the provisions of Section 149 should not apply.

(2.) Some doubt has been suggested as to whether the Judge exercised his discretion in making the various orders to which I have referred. It appears to me impossible to go into a question of that kind. He must be taken on the record, as it stands to have, exercised his discretion as provided by Section 149. The result is, in my opinion, the decree of the Subordinate Judge and of the Munsif must lie set aside and the case sent back to the Court of first instance in order that it may be heard in accordance with law. Costs hitherto incurred will follow the result.

(3.) N. Chaterjea, J.--I agree.