(1.)THIS revision application is directed against the order dated 6th March, 1965, of the learned District Judge, Jhun-jhunu by which the petitioner's appeal was rejected and the order passed by the Civil Judge, Sikar dated 18th November, 1963, was upheld,
(2.)THE facts giving rise to the present application may briefly be stated as under; keshavdas opposite party in this case filed a suit for recovery of Rs. 3176/against ladnlal petitioner in the court of the Civil Judge, Sikar. The petitioner filed his written statement in the suit, issues were also framed and on 17th September, 1962, when evidence of two witnesses of the plaintiff was to be recorded he did not put in appearance in the court and his counsel also pleaded no instructions. The court then proceeded to record the evidence of the plaintiff and decreed the suit with costs on the same date.
(3.)THE petitioner then made an application before the Civil Judge for setting aside the ex parte decree which was rejected. He then preferred an appeal against the said order to the court of the District Judge, Jhunjhunu and the learned District judge after hearing the parties passed the following order:
"i, therefore, accept this appeal and order that the case be remanded to the lower court for further enquiry into the application of Ladulal dated 12-10-62 on payment of Rs. 50/- as costs to the respondent Kesavdass. If the costs are not paid or deposited in the court of Civil Judge, Sikar within a period of 30 days to be paid to the respondent, this appeal of the appellant Ladulal would stand dismissed. "
It is not in dispute that in compliance of this order the petitioner sent a money order of Rs. 50/- on 16th September, 1963 to the court of the District Judge, jhunjhunu which was received in that court on 19th September, 1963. However, this fact that such deposit had been made in the court of the District judge was not communicated to the Civil Judge, Sikar either by the petitioner or by the District Judge, Jhunjhunu. When the record of the case was received in the court of the Civil Judge, he recorded an order on 29th August, 1963, that it might be submitted before him on 21st September, 1963 after the period for depositing the costs expired. On 21st September, 1963, the learned Civil Judge was not at the headquarters. The file was, therefore, submitted before him on 12th October, 1963 and On this date only the counsel for the non-petitioner was present while the petitioner and his counsel were absent. The learned Judge on that date passed an order that as the order passed by the learned District Judge on 20th August, 1963, had not been complied with, the suit cannot be restored to its original number. Subsequently, on 24th October, 1963, the petitioner made an application before the court stating that he had complied with the order of the District Judge inasmuch as he had sent the amount of Rs. 50/- by money order to that court and was also received there on 19th September, 1963 and, therefore, the suit might be restored and enquiry be made as directed by the District Judge. He also submitted the postal acknowledgment receipt along with the application. The learned Civil Judge rejected this application on 18th November, 1963 holding that according to the direction of the District Judge the amount of Rs. 50/- ought to have been deposited in his court and not in the court of the District Judge and as such the order had not been complied with. Against this order the petitioner again preferred an appeal in the court of the district Judge. The learned District Judge reject- ed the appeal holding that the order passed by him on 20th August, 1963, had not been strictly complied with, as the amount of Rs. 50/- instead of being deposited in the court of the Civil Judge was deposited in his own court. He also referred to Surajpal Singh v. Deokali, AIR 1926 Oudh 481; L. P. Jain v. Nandakumar R. Taliwalla, AIR 1961 Bom 254 and P. Nasar Saheb v. P. Nabi Saheb, AIR 1957 Andh Pra 780 for the view that he had no power to extend the time for the deposit of costs as he had become functus officio and the order of dismissal of appeal has automatically come into force on the expiry of 30 days. Against this order this revision petition has been preferred by the petitioner and it has been contended that substantial compliance of the order passed by the District judge had been made by the petitioner inasmuch as he had deposited Rs. 50/within the time fixed by the court, in the court of the District Judge and that being so both the courts were in error in holding that the order was not complied with merely on the ground that the amount instead of being deposited in the court of the Civil Judge was deposited in the court of the District Judge. Learned counsel for the non-petitioner has raised two principal objections viz. ,
(1) that no appeal lay to the District Judge against the order passed by the Civil Judge on 18th November, 1963 and at any rate the Civil Judge had decided the matter finally on 12th October, 1963, against which no appeal was preferred. (2) that the amount of costs was not deposited in the court of the Civil judge as ordered by the District Judge and it was also not deposited within 30 days from 20th August, 1963. In this connection he says that the last date for depositing the amount was 18th September, 1963.