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Kashi Kurmi Vs. Bansraj Kurmi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All150
AppellantKashi Kurmi
RespondentBansraj Kurmi
Excerpt:
.....the court-fee of the trial court was extended by the lower appellate court and the court-fee was paid within this extended time. he acquiesced in the order of the appellate court giving time to the plaintiff-respondent to make good the deficiency and accepting it......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.4......
Judgment:

Ganga Nath, J.

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.

4. There can be no doubt about the power of the Appellate Court to do so. Under Order 41, Rules 32 and 33, the Appellate Court has ample power to vary the decree of the trial Court and to pass any order which the case requires. The Appellate Court could extend the time and suspend the order made in the decree of the trial Court by varying its terms in accordance with the provisions of Order 41, Rule 32. In Maslahuddin v. Ram Kishen (1928) 15 A.I.R. Oudh 32 it was laid down:

The jurisdiction with which a Court is invested by the provisions of Section 148 in the matter of enlargement of time is restricted to cases where time for doing an act is fixed by the Court otherwise than by its decree in a suit. But once an appeal is preferred from a decree, the Appellate Court becomes seized of the entire proceedings and becomes vested with the jurisdiction of confirming, varying or reversing the decree from which the appeal is preferred. It follows that the Appellate Court had jurisdiction to extend the time, though not under Section 148, but under the provisions of Rule 32, of Order 41, Civil P.C. by varying the decree of the Court of first instance in that behalf,

5. The appeal was filed from the decree as it had been passed by the trial Court. The plaint was to be deemed as having been rejected only if the court-fee had not been paid within the time given. If the court-fee were paid within the extended time, even after the expiry of the time originally fixed in the decree, there would be compliance with the order and the plaint would not be deemed to have been rejected. In this case, the time for making good the deficiency in the court-fee of the trial Court was extended by the lower Appellate Court and the court-fee was paid within this extended time. The plaint therefore cannot be regarded as having been rejected. The decree consisted of two alternative orders from both of which an appeal lay to the lower Appellate Court. The 'decree' as defined in Section 2, Clause (2), Civil P.C. includes the rejection of a plaint. The order rejecting the plaint in case of non-payment of the deficiency in the court-fee was a decree and an appeal lay from it. After the payment of the deficiency in the court-fee within the extended time given by the lower Appellate Court, the first order did not become effective and it was only the latter order, that is the decision on merits which remained in the case. The appellant did not take such objection as is now taken by him as regards the rejection of the plaint in the lower Court. He acquiesced in the order of the Appellate Court giving time to the plaintiff-respondent to make good the deficiency and accepting it. As no objection was taken by the appellant, no further order in the matter was needed and passed.

6. Coming to the merits, as stated above, the validity of the gift deed was challenged by the plaintiff on the ground of fraud practised by the defendant on him. The lower Appellate Court has found that a fraud was practised under which the gift deed was executed instead of a mortgage deed. The plaintiff is an illiterate person and he did not know the real nature of the deed which was executed by him. Whether there was any fraud or not was a question of fact which has been found by the lower Court on the evidence produced by the parties and the finding of the lower Court is conclusive. There is no force in the appeal. It is therefore ordered that it be dismissed with costs. Permission for Letters Patent appeal is refused.


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