Meerasaidu Muhammedkutty vs Kunjukutty Kunjamma

K. Sreedharan, J.—Appellant in A.S. No. 47/76 on the file of Subordinate Judge''s Court, Mavelikala is the petitioner in this Civil Revision Petition. On account of non-payment of the deficit court fee on the Memorandum of Appeal, the appeal was dismissed on 17-10-1980. On 24-10-1980 appellant filed I.A. No. 1557/80 praying for restoration of appeal to file. The said application, was purported to be one filed under Sec. 151 of the Code of Civil Procedure. The learned Subordinate Judge dismissed that application by his order dated 3-1-1981 holding that such a restoration application will not lie. The correctness of that order is in challenge. Section 107(2) of the CPC reads as follows:

(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

This provision gives no room to doubt the jurisdiction of the Appellate Court. The jurisdiction of the Original Court has to be exercised by the Court of Appeal as nearly as may be applicable in a given situation. Order VII Rule 11 of the Code provides that the plaint shall be rejected in case the plaintiff fails to supply the requisite stamp paper if it is found that the plaint is written upon insufficiently stamped papers. The same step must be resorted to by the Appellate Court when the appellant fails to supply the deficit stamp paper when called upon to do so. In other words, when the appellant fails to furnish the deficit court fee stamp when called upon to do so the appellate court should reject the Memorandum of Appeal. Such rejection of the Memorandum of Appeal will have to be treated as having the same effect as the rejection of a plaint under Order VII Rule 11 of the Code. Section 2(2) of the Code defines decree to include the rejection of a plaint. Hence the rejection of a Memorandum of Appeal on account of non-payment of deficit court fee will also be a decree. In this view, a person aggrieved of that decree can have it set aside only by resort to the procedures contemplated by the Code. When specific provisions for the said purpose are contained in the Code, a petition under Sec 151 of the Code cannot be a proper course to be resorted to.

The learned counsel appearing for the revision petitioner brought to my notice certain decisions in support of his contention that in situations similar to the one before me, the proper remedy for the aggrieved appellant can only be a petition under Sec. 151 of the Code. The first decision relied on by the learned counsel is Ningappa Narsingappa Havaldar Vs. Chandra Jakkappa Havaldar, . In that case the appellant did not deposit the costs for preparation of paper book. On that ground the appeal was dismissed. The appellant then filed application to restore the appeal. The Appellate Court took the view that such an application would not fall under Order 41 Rule 19. It further held that the appellant was not entitled to invoke the help of the inherent jurisdiction under Sec. 151. Dealing with this matter the High Court took the view that order 41 Rule 19 does not exhaust the powers of the Court in proper cases to readmit an appeal dismissed for default and it is open to the Court to exercise its inherent powers, to deal with these matters, under Sec. 151 C.P.C. The next decision is Mrs. Minnie Lal Vs. Mahadeo Lall Marwari and Others, . There, on account of the appellant''s failure to comply with a peremptory order to pay the printing costs of the appeal, the appeal was dismissed for default. A petition under Order 41 Rule 19 of the Code was filed for restoring the appeal to file. The Court held that such an application will not come within the provisions of Order 41 Rule 19 and it can be entertained only under Sec. 151 of the Code. Lastly decision in Biswanath Banerjee and Others Vs. Amar Nath Mukherjee and Others, was relied on. There also the appeal was dismissed for non-payment of the costs of the paper book. When that appeal was sought to be restored to file, the Court held that the application for that purpose will fall under Sec. 151 and not under Order 41 Rule 19. The above decisions relied on by the learned counsel for the revision petitioner, according to me, do not go to help him. The facts of those cases would go to show that the appeals were dismissed on account of non-payment of charges which the plaintiff was called upon to pay. None of the appellants in these cases was asked to pay the deficit court fee on the Memorandum of Appeal. Therefore the dismissals of the appeals will not fall under the category of "rejection of plaint" contemplate by Order VII Rule 11. Those dismissals will not also come under Order 41 Rule 19 because the dismissals were not under Rule 11(2) or Rule 17 or Rule 18 of order 41. It is on account of this, the applications in those cases were taken as falling under Sec. 151 of the Code. Such is not the situation in the case on hand. The Court below in the impugned order has referred to the decision reported in Radhanath Jha Vs. Bacha Lal Jha and Others, The Full Bench of the Patna High Court held in that case that Order VII Rule 11 applies to the case of Memorandum of Appeal and that dismissal of an appeal under Order VII Rule 11 for non-payment of Court fee tantamounts to a decree under Sec. 2(2) of the Code, I am in respectful agreement with the principles stated in this decision, it therefore follows that the dismissal of the Memorandum of Appeal in A.S. No. 47/79 on account of non-payment of deficit court fee tantamounts to a decree. To set aside that decree, the appellant ought to have preferred an appeal therefrom or a petition for review under Order 47 of the Code. The appellant, without resorting to any of those course as provided by the Code, has filed I.A. No. 1557/80 purporting to be one under Sec. 151 of the Code. Such application is not maintainable the Court below has rightly dismissed the same. I find no ground to interfere with the order passed by the learned Subordinate Judge.

The result, therefore, is the Civil Revision Petition fails. It is accordingly dismissed. However, I make no order as to costs.