1. This is an appeal by the petitioner in the lower Court in I.A. No. 507 of 1955, in Original Suit No. 1363 of 1954, on the file of the III Assistant City Civil Judge, Madras.
2. The facts are that by the order in I.A. No. 507 of 1955, the learned Judge directed this petitioner (appellant) to deposit a sum of Rs. 350 into Court on or before 2nd April, 1956, failing which his petition under Order 9, Rule 9, of the Code of Civil Procedure, to restore the suit dismissed for default, to file, will itself stand dismissed. In this order, the learned Judge observes that this was not the first occasion when the plaintiff was absent or unready. The plea before him was that the plaintiff (petitioner) should be actually directed to pay into Court a sum of Rs. 750 being the costs of the suit and the costs of the application, before the order of dismissal was set aside.
3. In the final paragraph of his order, the learned Judge observed that the respondent contended before him that the petitioner (appellant) should deposit the entire costs of Rs. 750, but that this was an onerous condition, and that taking the conduct of the plaintiff throughout into account, he determined the costs which ought to be deposited at Rs. 350. It is not denied before us that default was made in this deposit and that, in consequence the petition itself stood dismissed after the expiry of the period fixed for the deposit.
4. We might immediately state that there are two grounds upon which this appeal will have to be dismissed as quite unsustainable. The first ground, which is preliminary in character, is that where a Court passes an order for restoration of a suit dismissed for defaut on condition of payment of costs to the opposite party within a time fixed by the order, and where it directs that in case of default the application for restoration should stand dismissed, upon the expiry of such time fixed for payment, the Court no longer remains seized of the application, but becomes functus officio (Gaya Din v. Lalita Prasad : AIR1936All477 . In view of this proposition, which is not disputed, the appeal itself will have to be dismissed in limine.
5. The second ground is that, even assuming that the order could be canvassed on the merits, since the appellant did not choose to file an appeal from the order directing him to make the payment of Rs. 350, we really cannot now proceed into the propriety of that order, or find that it is excessive and onerous. Apart from this, upon the admitted facts, we are unable to agree that the order was onerous, merely because the plaintiff was instituting the suit in forma pauperis.
6. In the result, the appeal which is seen to be devoid of merits, is dsmissed; the parties to bear their own costs.