Jagat Narayan, C.J.
1. This is an application by the petitioners for setting aside the order dated 23-8-71 holding that the pauper appeal stood dismissed in accordance with the order 8-7-1971.
2. The petitioners filed an application for leave to appeal as a pauper. The following order was passed on 1-4-71:
We accordingly direct the petitioners to file an affidavit that they are unable to pay court fees on the excess amount of interest which is about Rs. 3,000/-. Two months time is allowed to file an affidavit and to pay court-fees on the balance if the petitioners wish to pursue their appeal with regard to the rest of the matter.
3. They neither filed an affidavit nor filed the court-fees within the time allowed An application for extension of time was filed on 5-7-71 on which the following order was passed on 9-7-71:
We allow six weeks' further time from 5-7-71 for paying court fees No further extension will be allowed. If court fees is not paid within time the whole appeal shall stand dismissed.
4. The court feet was not paid within six weeks, from 5-7-71 and on 23-8-71; an order was passed that as the court fee has not been paid the whole appeal stood dismissed in accordance with the order dated 3-7-71. On 23-8-71 no one appeared for the petitioners when the above order was passed. Later on, Shri R.R. Chacha Advocate appeared and drew our attention to the fact that full court fee was filed on 20-8-71 and prayed that the order we had passed on that date, be set aside. We declined to set it aside as 20-8-71 was beyond six weeks from 5-7-71.
5. The present application was then moved on 20-9-71 praying that the order dated 23-8-71 be set aside. It is contended on behalf of the petitioner by Shri B.K. Acharya Advocate on the authority of Mahanth Ram Das v. Ganga Das : 3SCR763 that this Court has jurisdiction to set aside the order passed on 23-8-71 despite the fact that no application for extension of time was made before the expiry of six weeks from 5-7-71 allowed under the order dated 9-7-71.
6. We are unable to agree with this contention. In the Supreme Court case Mahanth Ram Das v. Ganga Das : 3SCR763 it is specifically mentioned in para 5 of the judgment that 'the application for extension of time was made before the time fixed by the High Court for payment of deficit court fee had actually run out.' In the course of the same paragraph it was observed:
Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired.
7. We are accordingly of the opinion that what was held by their Lordships in that case was that time granted under a peremptory order could also be extended, provided the application for extension of time was made before the expiry of the period fixed under the peremptory order.
8. We are supported in the view we have taken by a decision of the Madras High Court in P.K. Sukamaran v. Salaiman Khan : AIR1971Mad454 . It was observed in the judgment:
Reference was also made to the decision in Mahanth Ram Das v. Gangadas : 3SCR763 where it has been held that a Section 148 C.P. Code, in terms, allowed extensions of time, even if the original period fixed has expired, that Section 149 is equally liberal, and that those sections could a fortiori be invoked when the time has not actually expired. The learned Counsel, relying on the above decision of the Supreme Court, wants this Court to construe Section 148 and 149 liberally and hold the order of the lower court erroneous as it had rejected the application for extension on the ground that it had no jurisdiction. But it is seen that in that case there was a direction by the court that the proper court fee should be paid on the memorandum of appeal having regard to the amended reliefs claimed within three months from the date of the ascertainment of the same by the office and the communication thereof to the counsel and that failing such payment of court fee, the appeal will stand dismissed. Even before default operated the petitioner filed an application for extension of time. The Supreme Court held in those circumstances that as the petition for extension had been filed within time the court had the power to extend the time under Sections 148, 149 and 151 C.P. Code On a close reading of the above decision, it is seen that the court was inclined to hold that the appellant should have the extension of time sought for by him especially when he has moved the court for such a relief before the default clause operated.
9. We accordingly dismiss the application without any order as to costs.
10. Learned Counsel for the petitioners prays that the court-fees paid by him may be refunded. We order the refund of the court fees under Section 61(1) of the Rajasthan Court Fees and Suits Valuation Act.