1. This appeal is by the plaintiff. The suit was dismissed as barred by limitation and the merits of the case have not been inquired into. The facts which gave rise to this decision are as follows: The suit was filed within time on 1st February 1935. The court-fees were deficient and time was eventually allowed up to 11th May. As the deficit court-fees were not paid by that date, the plaint was rejected. The plaintiff however appeared on 27th with the necessary court-fees and prayed for an extension of time on the ground that he had gone to Bengal on business and there fallen ill. This prayer was allowed and the order rejecting the plaint set aside. Summonses were then issued and defendant 2 admitted the claim. Defendant 1 contested the suit raising; amongst other things this plea of limitation. The plea has been accepted by both the Courts below. The contention made in support of this plea was that when once' the plaint had been rejected, the Munsif had no power to give a further extension of time under Section 149, Civil P.C. It is to be noted that this contention was raised at the trial. There never had been an application asking the Munsif to review his order. When the question was raised, the Munsif began to wonder under what Section of the Code he has passed this order. He reached the conclusion that Section 151 had no application and he was supported in. that view by the decision in Sarat Chandra Sen v. Mritunjoy Ray : AIR1935Cal336 . He doubted whether the case came within the provisions of Order 47, and was further satisfied that, if it did, he had not followed the proper procedure. He accordingly dismissed the suit as barred by limitation. In appeal the learned Subordinate Judge accepted both his finding and the reasons' given for it.
2. In my judgment, both Courts below have-missed what is the real point in the case. The fact remains that, rightly or wrongly, the Munsif did allow time under Section 149 and the question for decision of the Court really was whether this order was a nullity. In my opinion, until it is set aside by a superior Court or in proper proceedings it remains a perfectly good order, whether rightly or wrongly made or whether made for good or bad reasons. It is not open to the defendants to treat it as though it had never been made and their proper course was to apply either in review or revision to have it set aside; as they have not done so, it remains an order.
3. This appeal is accordingly allowed. The decree dismissing the suit is set aside and the case remanded to the Court of the Munsif to be heard on the merits. As defendant 2 admitted the claim, there is no reason why he should be made liable for costs in connexion with the appellate proceedings. As between the appellant and defendant 1, costs in this Court and in the lower Appellate Court will abide the result.