KASHI KURMI Vs. BANSRAJ KURMI

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit brought against him by the plaintiff-respondent for declaration that the deed of gift executed by the plaintiff in the name of the defendant was null and void. The plaintiff's case was that he executed it taking it as a mortgage deed. The defendant got a gift deed executed instead of the mortgage deed by fraud. The defendant denied that any fraud was practised. The trial Court found in favour of the defendant and dismissed the suit on merits. There was some deficiency in the court-fee and the learned Munsif passed the following decree: The plaintiff is called upon to make the deficiency in court-fees as ordered above within 10 days hence, failing which the plaint shall stand rejected. On payment of the above court-fees only his suit will be taken to have failed on merits. The defendant will receive his costs of the case in all events of the case.

(2.) The plaintiff filed an appeal and the learned Civil Judge has found in favour of the plaintiff and has decreed the suit. The defendant has come here in second appeal. It has been urged on behalf of the appellant that as the deficiency in the court-fee was not made good by the plaintiff, the plaint should be deemed to have been rejected and that there was no decree on merits from which any appeal could have been filed in the lower Court and the learned Civil Judge's decision on merits is illegal. This argument has no force. The deficiency of the lower Court was noticed when the appeal was filed. A report was made by the munsarim and the lower Court allowed certain time for making good the deficiency within which the deficiency of the lower Court as well as of the trial Court was made good. If before the filing of the appeal an application had been made by the plaintiff to the trial Court for extension of time, it could have extended the time under Section 148, Civil P.C. Which says: Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time enlarge such period, even though the period originally fixed or granted may have expired.

(3.) But after the appeal was filed, the trial Court could not give any extension and it was the Appellate Court which became seized of the case and could give an extension. In 37 Cal. 5481 it was laid down: Section 148, Civil P.C. 1908, cannot be taken 4o give any Court power to interfere with or modify its decree after there has been an appeal filed against the decree. The only Court that could, after an appeal had been preferred, modify the terms of the decree, or extend the time fixed in the decree for its execution, or suspend the order made in the decree, would be the Appellate Court.