1. The petitioner is the plaintiff in O. S. No. 61 of 1946 in the Court of the Subordinate Judge of Guntur. She obtained a decree on 7th December 1946. On 15th April 1947 the respondent to this application who was defendant 1 in the Court below, presented to this Court an appeal which was valued at Rs. 25,305. The proper court-fee payable thereon was Rs. 1342-7-0. The appeal was presented however with a court-fee of Rs. 10. The memorandum of appeal was returned by the office on 1st May 1947 inter alia for payment of the deficit court-fee. On 3rd January 1949 an application was made by the respondent herein to excuse the delay in payment of the deficit court-fee. The delay was of nearly two years. On 5th January 1949, a learned Judge of this Court sitting in the Admission Court excused the delay without directing notice to the other side, that is, the petitioner before us. The petitioner on coming to know of the facts after a stay of execution had been obtained by the respondent has filed the present application to dismiss the appeal on the ground that the delay in the payment of deficit court-fee ought not to have been excused and therefore the appeal should be rejected.
2. The main ground on which the delay was sought to be excused was that the respondent could not raise sufficient money to enable her to pay the court-fee. According to her the petitioner was also instrumental in sparing away prospective alienees from whom she could raise moneys. In the affidavit filed by the petitioner in this application, among other allegations, is to be found what we consider an important allegation, namely, that on 13th March 1948 the respondent sold 3 acres 69 cents of her land for Rs. 1000 for the express purpose of meeting the expenses of the present appeal. This fact is not denied and cannot be denied because the registration extract of the document in question has been produced before us. What the respondent says is that she did sell the property for Rs. 1050 but she spent away the sale proceeds for another litigation. Having regard to this fact, it is clear that even the ground alleged by her in her application for excusing the delay in payment of the deficit court fee cannot be sustained. Assuming however that she was as a matter of fact unable to raise sufficient moneys till the date of her application to excuse the delay, that by itself cannot be a sufficient ground to have the delay excused. If she did not have the means to pay the court-fee, she should have, if so advised, filed the appeal in forma pauperis. We cannot tolerate the practice of filing an appeal with a patently deficit court-fee simply because before the last date of filing the appeal the appellant is unable to secure enough money for payment of the full court-fee and then taking time to raise the deficit amount and get the delay excused as a matter of course.
3. Unfortunately in this case the delay was excused by a learned Judge of this Court. It was sought to be argued on behalf of the respondent by Mr. Ramamurthi Ayyar that as a learned Judge of this Court has excused the delay, the only course for the other side was to file a review application. He drew our attention to the decision of Wallace J. in Basavayya, v. Venkatapayya, : AIR1926Mad676 but we are unable to find anything in that decision to lay down that a review is the only remedy open to the party to whom notice was not given before passing an order to his detriment. On the other hand, we are in entire agreement with the observations of the learned Judges in Kunhammad v. Kunhammad, (1914) 1 M. L. W. 440:A. I. R. 1914 Mad. 386 that in cases in which a Judge sitting in the, Admission Court excuses the delay in payment of court-fee or delay in presentation of the appeal without notice to the other side, it is assumed that the other side would be always at liberty at a subsequent stage or even at the hearing of the appeal to contend that the delay should not have been excused. It is desirable that notice should be given in such cases to the other side to obviate inconvenience and expense which might be avoided if the Court were to eventually refuse to excuse the delay. We therefore think that it is open to the other side in this case to come up before us and contend that the delay should not have been excused in the circumstances and if she can persuade us to hold in her favour, to dismiss the appeal. But we find in this case a large amount of court-fee has been paid in pursuance of the order of a learned Judge of this Court excusing the delay. Having regard to this fact, we consider that the interests of justice would be met by not disturbing the order excusing the delay pro-vided the party to whom this indulgence has been given is put on terms. We think it proper that the respondent to this petition i.e., the appellant in A. S. No. 37 of 1949 should pay the costs of the appeal to respondent l to the appeal in any event. She should further either deposit into Court or furnish security of unencumbered immovable property to the satisfaction of the second Assistant Registrar for a sum of Rs. 1500 within two months from the date of this order. If this last direction is not complied with the appeal will be posted for dismissal.