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Musammat Barfi Vs. Lala Kishorilal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All331(1); 50Ind.Cas.79
AppellantMusammat Barfi
RespondentLala Kishorilal and ors.
Excerpt:
civil procedure code (act v of 1908), sections 109(a), 149 - appeal to his majesty in council--order rejecting application to extend time for paying in court-fees, whether final order. - - 2. it is contended on behalf of the applicant that the order of this court refusing to allow the fees to be paid is a final order passed on appeal by this court within the meaning of clause (a). we think that it is clearly not such an order......and by an order dated the 2nd of april 1918, rejected the application upon the ground that the decree appealed against had not been shown to be contrary to law or erroneous or unjust thereupon the applicant made a fresh application that notwithstanding limitation she might be at liberty to deposit the necessary court-fees, so that the appeal might be tried in the ordinary way. the appeal at this time was of course long beyond time. this court rejected this application also. section 149 of the code of civil procedure provides that where the court-fees have not been paid, the court may at its discretion allow the person by whom the fee is payable to pay it and upon such payment the documents would have the same force and effect as if the fee had been paid in the first instance. it is.....
Judgment:

1. This is an application for leave to appeal to His Majesty in Council. It appears that the applicant filed a memorandum if appeal in this Court against the decision of the District Judge. At the same time the applicant made an application that she might be allowed to appeal in forma pauperis. A Bench of this Court heard that application and by an order dated the 2nd of April 1918, rejected the application upon the ground that the decree appealed against had not been shown to be contrary to law or erroneous or unjust Thereupon the applicant made a fresh application that notwithstanding limitation she might be at liberty to deposit the necessary Court-fees, so that the appeal might be tried in the ordinary way. The appeal at this time was of course long beyond time. This Court rejected this application also. Section 149 of the Code of Civil Procedure provides that where the Court-fees have not been paid, the Court may at its discretion allow the person by whom the fee is payable to pay it and upon such payment the documents would have the same force and effect as if the fee had been paid in the first instance. It is quite clear that the appeal could not proceed or be admitted, unless the Court had allowed the application to pay the fee not withstanding the lapse of time. This Court in exercise of its discretion rejected the application. It is from this order that the applicant now seeks to obtain leave to appeal. Appeals to His Majesty are prescribed by Section 109 of the Code of Civil Procedure and it is there provided that an appeal shall lie to His Majesty in Council.

(a) from any decree or final order passed on appeal by a High Court;

(6) from any decree or final order passed by a High Court in exercise of original and civil jurisdiction; and

(c) from any decree or order when the case as hereinafter provided is certified to be a fit one for appeal to His Majesty in Council.

2. It is contended on behalf of the applicant that the order of this Court refusing to allow the fees to be paid is a final order passed on appeal by this Court within the meaning of Clause (a). We think that it is clearly not such an order. It was not an order passed on the appeal. The appeal had never been admitted. It was simply an application made to this Court for the first time asking for leave to deposit a Court-fee. We reject the application with costs.


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