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Rajkishore Sahu Vs. Pushraj Sagarmal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 330 of 1962
Judge
Reported inAIR1964Ori86
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 115 and 151 - Order 7, Rule 11 - Order 9, Rules 9 and 13 - Order 41, Rules 3, 11 and 19 - Order 47, Rule 1; Constitution of India - Article 133
AppellantRajkishore Sahu
RespondentPushraj Sagarmal and anr.
Appellant AdvocateR.N. Sinha and ;S.C. Sahu, Advs.
Respondent AdvocateL.K. Dasgupta, ;S.C. Ghose and ;J.M. Mitra, Advs.
DispositionRevision allowed
Cases ReferredManoharlal v. Seth Hiralal. Their Lordships
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........thereon and asked the petitioner to file an affidavit showing cause for non-appearance. the same learned judge passed an order on 9-5-1962 to the following effect : 'petition is allowed. in the circumstance the appeal be restored. to 12-5-62 for payment of court-fee' on 28-6-1962 the petitioner paid the court-fees. on 10-9-1962, the opposite parties appeared and raised a preliminary objection on the quesdon of limitation. the learned district judge (mr. k. p. panda) heard the matter, set aside the order of restoration passed by his predecessor (mr. u. n. misra) and rejected the memorandum of appeal on 13-9-1962. it is against this order the civil revision has been filed. 2. mr. dasgupta relying upon a series of patna decisions reported in suraj pal pandey v. uttim pandey, air 1922 pat.....
Judgment:
ORDER

G.K. Misra, J.

1. Defendant-1 is the petitioner. Money Smt No. 107 of 1957 was decreed for Rs. 2917.40 nP. against the petitioner on 3-10-1961. On 8-12-1961 M. A. No. 79 of 1961 was filed before the District Judge and on the same day the syapeltent filed an application for time to pay the deficit court-fees. This was allowed till 21-12-1961. Again the appellant applied for time which was granted tin 3-1-1962. On this date the application for time to pay the deficit court-foes was rejected and the appeal was dis-missed. On 31-1-1962 an application was filed to set aside the order of dismissal and to accept the court-fees. Misc. case No. 11 of 1962 was registered under Order 41, Rule 19, C. P. C. On 7-2-1962, the appellant filed process fee but no requisites for postal service. On 27-2-1962 postal requisites were filed and the Court ordered issue of notice on the opposite parties fixing 4-4-1962 for retain. Despite this order, and the fact that the requisites had been filed, processes were not actually issued. This is a matter of mystery and it is somewhat astonishing that there is nothing to the judgment of the learned District Judge to indicate as to how the office did not issue the notice though the Court had so ordered.

On 4-4-1962 as no notice had been issued, the opposite parties did not appear. Mr. S. C. Sahu, the learned Advocate for the petitioner, filed a memo on 5-4-1962 (though obviously a mistake for 4-4-1962) stating that the notices on the opposite parties need not be issued as they had not appeared in the appeal from which the, present Misc. case arose. The learned District Judge (Mr. U. N. Misra) took notice of this memorandum, passed no orders thereon and asked the petitioner to file an affidavit showing cause for non-appearance. The same learned Judge passed an order on 9-5-1962 to the following effect :

'Petition is allowed. In the circumstance the appeal be restored. To 12-5-62 for payment of Court-fee'

On 28-6-1962 the petitioner paid the court-fees. On 10-9-1962, the opposite parties appeared and raised a preliminary objection on the quesdon of limitation. The learned District Judge (Mr. K. P. Panda) heard the matter, set aside the order of restoration passed by his predecessor (Mr. U. N. Misra) and rejected the memorandum of appeal on 13-9-1962. It is against this order the Civil revision has been filed.

2. Mr. Dasgupta relying upon a series of Patna decisions reported in Suraj Pal Pandey v. Uttim Pandey, AIR 1922 Pat 281, Radhanath Jha v. Bachalal Jha, AIR 1955 Pat 370 (FB) and Mahaath Ram Das Chela v. Ganga Das, AIR 1956 Pat 20, contends that the orders dated 3-1-1962 and 13-9-1962 amount to decrees against which an appeal lies and the revision in the High Court is incompetent against the last order. This question is concluded by a decision of this High Court reported in ILR (1962) Cut 818 Achyuta v. Sibram in which I held that the rejection of memorandum of appeal or the dismissal of an appeal under Order 41, Rule 3, or Order 7, Rule 11, read with Section 107(2) is not a dismissal of the appeal under Order 41, Rule 11 C. P. C. and is not a determination of the rights of the parties with regard to all or any of the matters in controversy. Such orders are not decrees and a revision against such an order to . the High Court is maintainable. The reasons are given in extenso in that decision and it is unnecessary to cover the same field once again. In this view of the matter, the revision is maintainable.

3. It is conceded on either side that to a case of restoration of appeal dismissed for nonpayment of deficit court-fees, Order 41, Rule 19, C. P. C. has no application. No other specific provision of the Code has been brought to my notice on either side whereunder the appeals in such circumstances should be restored. The order dismissing the appeal can certainly be reviewed under Order 47, Rule 1, provided the conditions laid down therein are fulfilled. Occasion arises when requisite conditions would be lacking and the application for review would be infructuous. Question in such circumstances does arise whether the Court can restore the appeal under Section 151, C. P. C. This section has been given a very wide construction by the recent decision of the Supreme Court reported in AIR 1962 SC 527, Manoharlal v. Seth Hiralal. Their Lordships mainly relied on the language of the section itself which says that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

On the concession of either side, there is no specific provision of the Code to deal with such matters corresponding to Order 9, Rule 9, or Order 9, Rule 13, C. P. C. Supposing a first appeal to the High Court is dismissed for non-payment of court-fees on the memorandum of appeal, whose value is more than Rs. 20,000/- and in which a question directly coming with the purview of Article 133 of the Constitution of India arises and in which a case for review under Order 47, Rule 1, C. P. C. cannot be made out, then Section 151 is not made applicable to such a case, the only alternative would be to ask the party to go to the Supreme Court. This would land the litigant public in heavy expenses for no ostensible reason. Section 151, C. P. C. is wide enough to cover such cases. I find no substance in this contention that the provisions of Section 151, C. P. C, cannot be invoked in the facts and circumstances of this case.

4. The Civil Revision is allowed and the order dated 13-9-1962 passed by the learned District Judge is set aside and the appeal is restored to file.

5. In the circumstances, parties to bear their own costs throughout.


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