RAM CHARAN Vs. BANSIDHAR

JUDGEMENT

(1.) This is an application on behalf of one Ram Charan, who filed an appeal, on payment of a Court-fee of Rs. 2 purporting to be against an "order" passed in execution of a decree. His appeal was really one arising out of an application for restitution, and the office of the High Court reported that the appeal was against a decree and that the Court-fee payable was an ad valorem fee. The applicant took time to pay the deficiency in Court-fee, but, ultimately, made this application on 14 May 1928, praying that he might be permitted to appeal as a pauper. There is an oral application on behalf of his counsel that, if necessary, time might be extended for making such an application under Section 5, Lim. Act.

(2.) The application has been opposed by the learned Counsel for the opposite party on the ground that the application having been made more than 30 days after the passing of the decree appealed against, should be treated as time barred. There can be no doubt that the applicant filed the appeal as an appeal against an order in the execution department, and never purported to make an application for leave to appeal as a pauper. It happened, contrary to the expectations of the applicant, that this Court treated the appeal as from a decree. It is possible that if the applicant had been advised beforehand that he could not appeal on a two-rupees stamp, he would have come in at once and within the 30 days allowed by Art 170, Lim. Act.

(3.) The question that we have to consider is whether Section 5, Lim. Act, is at all applicable and, secondly, whether we should apply the same if we find that it is applicable.