KOLISETTI BASAVAYYA Vs. MITTAPALLI VENKATAPPAYYA

JUDGEMENT

(1.) This Civil Revision Petition is against the decision of the Additional District Munsif, Guntur, declining to grant a review of an order by his predecessor excusing delay in re-presentation of a plaint. The facts were as follows: A plaint was presented on 20 April, 1923, with a one rupee stamp, the proper stamp being Rs. 142. It was returned on 4 June, 1923, for two reasons, (1) to pay deficient Court-fee, and (2) to compare the copy of accounts. Seven days time was given. On 16 June, 1923, a further extension of time of 10 days was given. The plaint was not re-presented until 4 March, 1924. On that date a petition was put in by the plaintiff under Section 151, Civil Procedure Code, with an affidavit by the pleader's clerk stating that the plaint had been mislaid and asking that the delay in re-presentation be excused. The deficient Court-fee was put in and paid on the same day. On 5 March, 1924, the District Munsif, without giving notice to the other side made an order on that petition "excused". On 20 August, 1925, the present District Munsif was asked under Order 47, Rule 1, Civil Procedure Code, by the defendant to review that order and he has declined to do so, and the defendant comes up with this petition.

(2.) The first point urged is that there was really no definite order by the first District Munsif indicating that he gave his mind to the long delay in paying up the deficient Court-fee, and therefore it was open to his successor to consider that matter de novo. Certainly the affidavit filed in support of the application for excusing delay does not make any mention of the payment of the Court-fee and was not put in under Section 149, Civil Procedure Code, but under Section 151, Civil Procedure Code. Nevertheless I think it must be held that the matter was brought to the notice of the District Munsif and that he exercised his mind consciously thereon and decided to excuse the delay in paying up the deficient Court-fee. That was the chief question in the matter of excusing the delay in representation and I must take it that the District Munsif applied his mind to it.

(3.) That being so, it was open to his successor to treat that order as one open to review by him if proper and legal grounds for review were made out. The Lower Court, however, seems to regard the matter as one which it had no power to review. That view seems to be wrong. But since the matter was within the discretion of the first District Munsif, and since it has not been brought to my notice that any new facts have appeared since that order was passed, there is no ground for interference with the Lower Court's refusal to review unless the first District Munsif had no jurisdiction whatever to excuse delay. Even so, the more proper course would have been for the petitioner to have come up here at once against the order excusing delay. Had he done so, he would have been able to urge with more propriety that the District Munsif should have given notice to him and heard him before he passed his order excusing delay. That he did not do, and the order was passed on 5