G. C. Mathur. J. - (1.) THIS revision has been referred to this Bench for con sideration of the question whether the decision of a Division Bench of this Court in Gaya Din v. Lalta Prasad. AIR 1936 All 477 is still good law. Doubts have been cast on the correctness of this deci sion on account of the decision of the Supreme Court in Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882.
(2.) SINCE the entire revision has been referred for decision, it is necessary to set out the relevant facts. The suit, out of which this revision arises, was filed on July 4. 1966. by the applicant in the court of the Munsif. Mirzapur. Some amendments in the plaint were allowed by the Munsif by his order dated April 11, 1967. Consequent to these amendments, there was a deficiency in the court-fees by Rs. 249.50 as reported by the Munsarim on August 4, 1967. The deficiency in court-fees was not made good within the time allowed and on October 4. 1967, the plaint was rejected as insufficiently stamped. On October 19 .1967. the applicant made an application for restoration and on December 7, 1968, the application was allo.ved. The -pera-tive portion of the order of the Munsif reads: "I allow the application and restore the plaint on payment of Rs. 6/- as costs and payment of entire court-fee by 11-12-1968. In case of any default, the application shall stand rejected." It appears that the matter was put up before the Munsif on December 11, 1968. on which date he passed an order for consigning the record. From the re cord of the case it appears that the de ficiency in court-fees was made good on December 11. 1968, possibly, after the order consigning the record had been made. The amount of Rs. 6/-, which had been ordered to be paid as costs, was actually deposited by tender in the court on December 12. 1968. When the ap plicant came to know of the order about consigning the record, he made an ap plication on December 17, 1968. under Section 151 of the Code of Civil Procedure praying that the order of December 11, 1968, consigning the record be set aside and the suit be proceeded with. This ap plication was treated as an application for extension of time. This application was rejected by the Munsif on Sept. 2, 1969, on the ground that, since the earlier application for restoration stood rejected on December 11. 1968 the court had no power either to extend the period or to pass any further order restoring the plaint. The Munsif relied upon the deci sion of this Court in AIR 1936 All 477 (supra). It may here be mentioned that, though this order states that the applicant did not pay the necessary court-fees on December 11, 1968, there is no dispute that the court- fees had. in fact, been paid on that date. It is this order of the Munsif which is challenged in this revi- siion. The question, which arises in the case, is whether the Munsif could, after the expiry of the period for paying costs, extend time therefor. As already stated above, the Munsif, in holding that he could not extend the time, followed the decision of a Division Bench of this Court in AIR 1936 All 477 (supra). It is contended by learned counsel for the ap plicant that this decision is no longer good law as the Supreme Court has. in Mahanth Ram Das's case. AIR 1961 SC 882 taken a contrary view.
(3.) IN Gay a Din's case. AIR 1936 All 477 the suit, which had been dismis sed for default, was restored on the ap plication of the plaintiff on the condition that he paid Rs. 8/- for costs to the de fendant on or before 27-10-1934. In case of default, the application was to stand dismissed. Rs. 4/- were paid on 15-9- 1934 but the balance was not paid upto 27-10-1934. On 29-10-1934 the plaintiff made an application for permission to pay the balance and for a direction to the defendant to receive it. The Munsif dismissed the application on the ground that he had no power to extend the time. In the revision before this Court, the plaintiff contended that the time should have been extended under Section 148 of the Code of Civil Procedure. This sec tion provides:- "Where anv period is fixed or Grant ed by the Court for the doing of anv act prescribed or allowed bv this Code, the Court may in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired". The Division Bench, which heard the revision, held that, on the expiry of the time fixed in the order, the application stood dismissed, the court no longer re mained seized of the application and could not grant any extension of time. It observed:- "The application of Section 148.- Civil P. C., depends on the question whe ther the matter has been finally disposed of bv the Court and the Court is seized of the matter and has control over it or not. If the order is not final and the Court re tains its control over and is seized of the matter, it has full power to make any just and necessary order therein, includ ing in appropriate cases the extension of time and Section 148. Civil P. C. can be applied. On the other hand, if the ef fect of the order is that in the event of non-compliance it operates automatically and without further intervention of the Court, the section cannot be applied for the obvious reason that the Court ceases to be seized of the matter and becomes functus officio".The view of the Division Bench was that, but for that part of the order which pro vided for the automatic dismissal of the application in default of payment within time, time could have been extended even after its expiry. ;