1. This appeal arises out of the rejection of the plaint in O.S. No. 12 of 1943 by the then Subordinate Judge of South Kanara on the ground that additional Court-fee which had been ordered to be paid by the plaintiff was not paid within the time limited. We think that a few dates may be of importance in this case. The enquiry with regard to the Court-fee was held on 10th September, 1943. The order was then made that an additional Court-fee of Rs. 345 and odd was to be paid by 30th September, 1943. Time was extended from that date twice until 16th October, 1943. As Court-fee was not paid within the time specified the plaint was rejected. It is urged and it is no doubt true that the proper course for the plaintiff to have pursued was to appeal against that order. But instead he filed an application under Order 9, Rule 9, of the Code of Civil Procedure and Section 151 to set aside the order. The application was filed on 2nd November, 1943. It was supported by affidavit and the Subordinate Judge, accepting the plaintiff's contention set aside the order on 15th January, 1944. The suit was thereupon restored and the plaintiff was given further time to pay the Court-fee. The appellants-respondents 5 to 7 in the lower Court then came up to this Court in revision in Cr. P. No. 279 of 1944. They argued successfully that neither Section 151 nor Order 9, Rule 9 of the Code of Civil Procedure applied. Lakshmana Rao, J., agreeing with their contentions nevertheless held that the order of the Subordinate Judge was open to review and that as the plaintiff had offered to pay the proper Court-fee it was right and proper that he should have an opportunity of appearing once more and having the order reviewed in the lower Court. The order of the Subordinate Judge was accordingly set aside in revision. The application for restoration of the suit was remanded to the lower Court for disposal as an application for review provided that the plaintiff paid the requisite Court-fee within a month from the date of the High Court decision.
2. The Court-fee was paid, the other formalities were complied with and in due course the matter came before the Subordinate Judge. It happened, however, that in the intervening period the former Judge had been transferred and a new Judge sat in his place. The new Judge after a full investigation into the matter allowed the review petition on 23rd December, 1944. He set aside the order of rejection of the plaint and restored the suit to the file.
3. It is conceded that neither before Lakshmana Rao, J., nor before the Subordinate Judge was any point taken under Order 47, Rule 2 of the Code of Civil Procedure. This rule provides shortly that where a review is sought of the decree by a Judge, other than a High Court Judge, upon grounds other than the discovery of new and important matter of evidence as referred to in Rule 2 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, the application shall be made only to the very Judge who passed the decree and cannot be made to his successor in office.
4. No doubt the section is clear and no doubt the application should have been made only to the very Subordinate Judge who passed the order but as stated this point was not taken in the Court below and the advocate who appeared there for the appellant contested the case fully and at length on its merits and merits alone. We are of opinion that this question of law cannot now be raised for the first time in this Court. Had the question been raised in the lower Court the plaintiff would have been in a position to seek relief in the High Court and could have pleaded all the grounds available to him for restoration of his suit. It is apparent from the dates mentioned above that an injustice would be done to the plaintiff if this point were allowed to be taken now.
5. On the merits it has been stated that the Subordinate Judge misdirected himself in relying on the decision of Ramesam, J., in Subbaraya v. Sundaresa : AIR1933Mad5 . In fact this case appears to have been overruled by the decision in Sivasubramania v. Adaikalam (1944) 1 M.L.J. 259 : I.L.R. 1944 Mad. 857. It does not appear to us that this point is material because Clause 1 of Order 47, Rule 7 of the Code of Civil Procedure sets out clearly the grounds under which the appellant can come to this court and the point in question appears to come neither under Rule 2 or the provisions of Rule 4, of Order 47, of the Code of Civil Procedure. In the result we are of opinion that this appeal should be dismissed with costs.