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Nebhraj Vs. Shanti Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 71 of 1971
Judge
Reported inILR1975Delhi733
ActsCode of Civil Procedure (CPC), 1908 - Sections 149
AppellantNebhraj
RespondentShanti Devi and anr.
Advocates: S.P. Mahajan and; M.L. Oberoi, Advs
Cases ReferredBabu Ram v. Gopal Sahai
Excerpt:
- - shanti devi (first respondent herein) as well as to prem parkash (2nd respondent herein) one month's time from 14-1-1971 to make good the court fee which was payable by each of them in respect of the amounts that h^d been decreed to them separately while passing a final decree in this case on 4-10-1966. (2) a suit had been filed by both the respondents, as co-plaintiffs, in february, 1962 for rendition of accounts and dissolution of partnership, the court-fee payable having been nominally valued and paid in the sum of rs. (5) there arc several aspects which seem relevant in a situation like this. the first proposition, which is well-settled is that where an application for enlargement of time for payment of court-fees is made......by each of them in respect of the amounts that h^d been decreed to them separately while passing a final decree in this case on 4-10-1966. (2) a suit had been filed by both the respondents, as co-plaintiffs, in february, 1962 for rendition of accounts and dissolution of partnership, the court-fee payable having been nominally valued and paid in the sum of rs. 130. a preliminary decree .was passed on 9-8-1962 the accounts were to be gone into before the passing of the final decree. the report of the commissioner was submitted on 19-4-1966 and the final decree was passed on 4-10-1966 directing that the judgment debtor will pay a sum of rs. 7119.82 p in favor of smt. shanti devi and another sum of rs. 7003.1 p. in favor of prem parkash along with costs to both of them. no time, however, had.....
Judgment:

S. Rangarajan, J.

(1) The petitioner is the Judgment Debtor, who is aggrieved by the order dated 14-1-1971 passed by the learned Subordinate Judge 1st Class (Shri Shamsher Singh Kanwar), who gave an opportunity to Smt. Shanti Devi (first respondent herein) as well as to Prem Parkash (2nd respondent herein) one month's time from 14-1-1971 to make good the court fee which was payable by each of them in respect of the amounts that h^d been decreed to them separately while passing a final decree in this case on 4-10-1966.

(2) A suit had been filed by both the respondents, as co-plaintiffs, in February, 1962 for rendition of accounts and dissolution of partnership, the court-fee payable having been nominally valued and paid in the sum of Rs. 130. A preliminary decree .was passed on 9-8-1962 The accounts were to be gone into before the passing of the final decree. The report of the Commissioner was submitted on 19-4-1966 and the final decree was passed on 4-10-1966 directing that the Judgment Debtor will pay a sum of Rs. 7119.82 P in favor of Smt. Shanti Devi and another sum of Rs. 7003.1 P. in favor of Prem Parkash along with costs to both of them. No time, however, had been fixed for the payment of deficit court-fee. Direction in the judgment, on which the final decree was based in this regard, was as follows :

'A decree sheet will be prepared after the plaintiffs pay the court fee and the commission fee.'

(3) There is no difficulty about the commission fee but the court fees were not paid obviously because of a difficulty which perceived by Smt. Shanti Devi who felt that she could not pay the court fees due on the amount separately decreed to her alone since a suit had been laid by her along with Prem Parkash as co-plaintiff. An application was, thereforee, made in August, 1969 stating that she was willing to pay the court fees due by her and that the decree passed in favor of Prem Parkash could be deleted to enable her to get an effective decree drafted in her favor which she might be able to execute. Unfortunately no order seems to have been passed on this application; the learned counsel at the bar have not been able to say that any particular order was passed on this application. Since no order was passed on the said application Smt. Shapti Devi seems to have filed yet another application on 2-2-1970 offering to pay the entire court-fee not only due from her but also due from Prem Parkash. It was on this application that the learned Subordinate Judge has passed the order which is now impugned in this Revision Petition giving time not only to Smt. Shanti Devi but also to Prem Parkash to pay the deficit court-fee on reliefs granted to each of them separately. Before the court-fees were paid this Revision Petition was filed and an order of stay of operation of the order was also obtained which was later on cancelled by V. S. Deshpande, J. on 1-4-1971 holding that Article 137 of the Limitation Act (corresponding to old Article 181) had prima fade no application, It is stated that thereafter the court-fee payable by Smt. Shanti Devi has also been paid.

(4) It is contended by Shri S. P. Mahojan, learned counsel for the petitioner, that the court-fee which could have been paid any time after the passing of the final decree on 4-10-1966 had to be paid immediately thereafter and that the residuary article, namely, present Article 137 of the Limitation Act, applies to the case and that the period of limitation having thus expired there was no power on the part of the lower court even to grant extension of time for payment of court-fee.

(5) There arc several aspects which seem relevant in a situation like this. The first proposition, which is well-settled is that where an application for enlargement of time for payment of court-fees is made. even in a case to which the residuary article of Limitation Act, or any other, applies and no order has been passed by the court before the expiry of such period, even in such a case the court has power to extend the time under section 149 Civil Procedure Code in order to meet with the ends of justice vide observations of Hidyatullah, J., speaking for the Supreme Court, in Mahanth Ram Das v. Ganga Das : [1961]3SCR763 .

(6) The second aspect which seems relevant is that court-fees being public dues could be paid when demanded and to such a situation it would be inappropriate to apply even under the residuary article of the Limitation Act. An analogous situation arose before a Division Bench of the Madras High Court in Pandivi Satyanandan v. Paramkusam Nammayya : AIR1938Mad307 where the only difference was that instead of court-fee what had to be paid was nonjudicial stamp paper for a final decree to be drawn up. The Division Bench held that a final decree for partition had .no existence as a decree until it was engrossed on proper non-judicial stamp paper, relying upon a previous decision of the Calcutta High Court in Jotindra Mohan Tagorc v. Bejoy Chand 1905 32 Cal 483 (2) in support of this proposition. Applying a similar reasoning to the present case there coild not be a complete final decree in existence till the court- fee was paid and no question of limitation can possibly arise in this view. An exactly similar situation, regarding payment of court-fee itself, arose before a Division Bench of the Allahabad High Court in Babu Ram v. Gopal Sahai : AIR1938All539 where a decree had been passed on the condition that the necessary court fee was to be deposited, but the same was deposited by the decree holder only after three years after decree. This was accepted by the court when the decree holder sought to obtain the decree. The contention that there was a bar of limitation was over-ruled in the view that the court had a discretion under section 149 Civil Procedure Code at any stage to allow the person by whom the court-fee is payable to pay the court-fee; it was further observed that the decree was not complete until payment of the court-fee and until then there was no decree which could be executed. A fortiori until there was a decree capable of execution it could not be said that limitation began to run under Article 182 of the Limitation Act, 1908.

(7) The third aspect, which is even more material for the present Revision Petition, is one which pertains to the facte of this case, namely, that even before the expiry of three years period of limitation (if it did arise at all) Smt. Shanti Devi made an 'application in August, 1969 on which no order was passed; it was followed up by another application on 2-2-1970, as stated above, on which the impugned order has been passed. In fact, it would be proper to regard the impugned order, passed on the application dated 2-2-1970 as passed on the application dated August, 1969 itself, the application dated 2-2-1970 being in effect and substance a continuation of the application dated August, 1969. In no view of the matter, thereforee, is there any scope for interference with the im.pi.igiied order in tin? Revision Petition. The Revision Petition is accordingly dismissed but without costs.


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