GANGA PRASAD Vs. SMGIRJA DEVI

JUDGEMENT

(1.) THE opposite party instituted the suit, out of which this application has arisen, on a court, fee of Rs. 180 and obtained a decree. In appeal the decree was set aside on the ground that it was filed in a Court which had no jurisdiction to entertain it. THE plaint was returned for presentation to the proper Court. When it was re-filed it was found that the court-fee paid was deficient by Rs. 45. THE plaintiff was called upon to make good this deficit. Although afforded ample opportunities to make good the deficit, the plaintiff did not do so, with the result that the suit was eventually dismissed on this account. THE plaintiff then made an application purporting to be under Section 151 and Order 47, Rule 1, Civil P.C. THE application was allowed on condition that the plaintiff paid the deficit court-fee by 3 December 1947. This application was filed on a court-fee of annas 15 and was apparently treated by the Court below as an application under Section 151 only, as it states: It may be noted here that the plaintiff filed an application for the restoration of the suit which wag allowed ex parte. THE defendant of the suit has now appeared and has filed objection to the restoration of the suit. THE defendant has moved against the order (restoring the suit and has contended that no Application for restoration under Section 151 lies against an order rejecting a plaint for nonpayment of court-fee, and that the only remedy against an order rejecting a plaint for nonpayment of court-fee is by way of review, which would require, in this case, a court fee of Rs. 112-8-0. THE plaintiff having paid only a court-fee of annas 15 on the application for restoration, a further sum of Rs. 111-9-0 is due from him, if the defendant's contention be correct. In Rameshwardhari Singh V/s. Sadhu Saran Singh A.I.R. 1923 pat. 354, this very question, with which I am now concerned, was debated and decided. It was there observed: THE order rejecting the plaint under Order 7, Rule 11(c) of the Code, operated as a decree, and Order 20, Rule 3 provides: That a judgment once signed shall not afterwards bo altered or added to save as provided by Section 152 or on review. THEre can be no doubt, in my opinion, that once an order of the Court is perfected, there is absolutely no power in that Court under its inherent jurisdiction either to alter or add to that order save as provided by Section 151 or on review. In the particular circumstances of that case, therefore, the Court set aside the order of the Court below restoring the suit but afforded the plaintiff an opportunity to make an application in the Court below for reviewing its order rejecting the plaint on payment of the proper court- fee. That is the proper order, in my opinion, to be passed in the present case. THE order of tie Court below restoring the suit will be set aside, but if the plaintiff makes an application for review on payment of a proper court fee within one month from to-day the Court will proceed to consider whether the circumstances of the case justify a review of the order. Let the record be returned to the Court below at once.

(2.) IT appears that in second Appeal No. 290 of 1946 a Division Bench, purporting to follow the decision of a Full Bench in Ramkhelawan Singh V/s. Monilal Sahu A.I.R. 1939 Pat. 678., held that, when an appeal has been dismissed for failure to pay the court-fee within the time allowed by the Court, the plaintiff was entitled to make an application for restoration under Section 151. The Division Bench apparently failed to observe that the Full Bench case was not a case of a dismissal for non-payment of deficit court-fees but for non-filing of plaintiff's list. The attention of the Division Bench was not drawn to the Division (sic) Bench decision in Rameshwardhari Singh V/s. Sadhu Saran Singh A.I.R.1923 Pat. 354, which was binding on it.