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Ram Dayal Vs. Sher Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All518
AppellantRam Dayal
RespondentSher Singh and anr.
Excerpt:
.....code of civil procedure read with section 149 of the code of civil procedure, the court had power in its discretion to allow the plaintiff further time in which to make good the deficiency of court fee and that if such deficiency was made good within the time prescribed, the fact that in the meantime limitation had expired would not affect the..........fee and that if such deficiency was made good within the time prescribed, the fact that in the meantime limitation had expired would not affect the suit. it seems to me that this contention is correct. the rule in jainti prasad v. bachu singh (1893) i.l.r. 15 all. 65 was not followed in the other high courts. it seems to me that under order vii, rule 11, clause (c), read with section 149 of the code of civil procedure, the legislature deliberately intended to supersede that decision. a similar view is taken in gaya loan office limited v. awadh behari lal (1910) 1 patna l. j. 420. in my opinion the court below was wrong in dismissing the suit on the ground of limitation. as on all other points the court below has found in favour of the plaintiff, i set aside the decree of the court below,.....
Judgment:

Ryves, J.

1. The plaintiff, Ram Dayal, sued to recover money due to him on a bond executed by the defendant. He filed his plaint on the 15th of May, 1922, which was the last day of limitation. The Munsarim made a report that, although the suit had been properly valued, the court fee paid was insufficient. Thereupon the court gave the plaintiff time up to the 19th of May to make good 'the deficiency. The deficiency was made good on the 17th of May and the plaint was then registered. At the trial the defendant pleaded, among other things, that the suit was barred by limitation. The court found, on the merits, for the plaintiff, but held that the suit was barred by limitation on the authority of Jainti Prasad v. Bachu Singh (1893) I.L.R. 15 All. 65. The plaintiff, in revision, urges that that decision is no longer law and that under Order VII, Rule 11, Clause (c), of the Code of Civil Procedure read with Section 149 of the Code of Civil Procedure, the court had power in its discretion to allow the plaintiff further time in which to make good the deficiency of court fee and that if such deficiency was made good within the time prescribed, the fact that in the meantime limitation had expired would not affect the suit. It seems to me that this contention is correct. The rule in Jainti Prasad v. Bachu Singh (1893) I.L.R. 15 All. 65 was not followed in the other High Courts. It seems to me that under Order VII, Rule 11, Clause (c), read with Section 149 of the Code of Civil Procedure, the Legislature deliberately intended to supersede that decision. A similar view is taken in Gaya Loan Office Limited v. Awadh Behari Lal (1910) 1 Patna L. J. 420. In my opinion the court below was wrong in dismissing the suit on the ground of limitation. As on all other points the court below has found in favour of the plaintiff, I set aside the decree of the court below, and decree the plaintiff's claim with costs in both courts.


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