1. In this ease it appears that the respondent here, who was the successful defendant appellant in the Lower Appellate Court, did not pay a sufficient amount of Court fees on his memorandum of appeal in that Court. As far as that Court is concerned it must be assumed under the first paragraph of Section 12 of the the Court Fees Act that the District Judge finally decided between the parties that the fee paid was sufficient. In this Court, however, it has been discovered that the defendant, respondent here, when appellant in the Court below did not pay a sufficient fee on his memorandum of appeal. The respondent here has been called on to pay the deficient duty, but has not done so. Mr. Hamilton for the appellant asks me to take action under the second Clause of Section 12 and the second Clause of Section 10 of the Court Fees Act and to dismiss the respondent defendant's appeal to the Lower Appellate Court. I am unable to see that I am authorized so to act under the second Clause of Section 10. That Clause provides, with reference to the valuation of the properties referred to in Section 7 paragraphs 5 and 6 of the Act, that when the Court fees paid are insufficient under the circumstances laid down in the first Clause of Section 10, the Court shall call on the plaintiff to pay the deficient Court fees and shall stay the suit until the additional fee is paid. It further provides that if the additional fee be not paid the suit shall be dismissed. The second paragraph of Section 12 makes the procedure set forth in the second paragraph of Section 10 applicable to the case when a Court of appeal, reference or revision considers that the question decided under the first paragraph of Section 12 has been wrongly decided to the detriment of revenue. The question then arises in the present case what is the suit which is to be stayed until the additional fee is paid, and it is to be noted that the staying of the suit is the act which the Court has to perform before it can dismiss the suit. There is no suit before me except in the sense that all proceedings in a suit up to decree are parts of the suit. What is before me is the appeal by the plaintiff against the decree of the Lower Appellate Court dismissing the suit. The appellant is undoubtedly no way in fault. He has paid up all the Court fees due from him in the lower Courts and in this Court. Does then the second Clause of Section 10 mean that because of the default of the respondent in the lower Court the appellant is to have his appeal in this Court stayed, and can it be held that the second Clause of Section 12, read with paragraph 2 of Section 10, means that if the respondent wilfully persists in refusing to pay, the appellant, who is not in fault, is to be punished by having his appeal dismissed? J cannot believe that it was intended by the Legislature to work any such injustice. In my opinion the second Clause of Section 10 read with the second clause of Section 12 cannot be worked in a case like the present. If it were the appellant who was in fault and failed to pay the full Court fee due from him in the lower Court, this Court certainly could stay the hearing of his appeal, and, if the deficient fees were not paid, could dismiss his appeal, and no doubt would do so. But where the appellant is not in fault, it would be most unjust that the respondent by failing to pay the Court fee due from him in the lower Court should have it in his power to prevent the appellant from having his appeal heard.
2. For these reasons I decline in this case to take action under the second Clause of Section 10 and proceed to hear the appeal on the merits.
3. On the merits the learned Counsel who appears for the appellant says he is not in a position to press the appeal. The appeal is therefore dismissed with costs. But I direct that the decree be not prepared or signed until the respondent pays the Court fees found due from him on his memorandum of appeal in the Lower Appellate Court.