Dhatri Saran Mathur, J. - (1.) This is an appeal by Sardar Gurdit Singh, defendant -appellant, against the order dated 15 -12 -1969 of the Addl. Distt. Judge, Meerut, vacating the earlier order dated 4 -1 -1968 and directing the appellant to value the appeal and pay advalorem court fee on the amount decreed by the trial court. The material facts of the case are that H.C. Rajpal and J.C. Rajpal, plaintiffs, instituted a suit for accounts against the appellant and valued the suit at Rs. 5,001/ -. The preliminary decree for accounts passed in the suit was not challenged and thereafter, after accounting, a final decree for a sum of Rs. 17,738/38 P. was passed against the appellant. Sardar Gurdit Singh preferred an appeal against the final decree, but valued it at Rs. 200/ - and paid court fee on this amount. The Munsarim of the Distt. Judge reported that the suit had been under -valued and the court fee paid was insufficient; but on the basis of the Full Bench decision in Ghalib Rasool v/s. Mangu Lal (1919 AWR 189), the memorandum of appeal was held not to be defective. At the time of the hearing of the appeal plaintiffs -respondents raised a preliminary objection to the court fee paid on the memorandum of appeal but the objection was repelled and the court fee paid held to be sufficient. The objection was repeated in an application moved on 19 -3 -1969, evidently after the Full Bench decision of this Court in Asharfi Lal v/s. Firm Thakur Prasad Kishori Lal ( : 1969 AWR 439). This being a five Judges' decision, was given effect to by the learned Distt. Judge, and he vacated the earlier order and directed the defendant -appellant to properly value the appeal and to pay advalorem court fee.
(2.) On merits, the impugned order cannot, in view of the larger Full Bench decision, be challenged; but three points were raised before me. Firstly, that the Distt. Judge did not have the power to review or revise the earlier order, neither under the provisions of the Court Fees Act nor of the CPC; secondly, that on the application of the principle of res judicata, the plaintiffs -respondents were debarred from re -agitating the question which had, after hearing, been decided, all the more, when that question was decided on the basis of the law as then interpreted by the High Court; and thirdly, that in view of S. 12 of the Court Fees Act the previous order became final and could not be reviewed though its correctness could be challenged in an appeal, revision or reference.
(3.) In view of S. 6(2) of the Court Fees Act it is not necessary to express any opinion on the first two points. For purposes of this appeal we can proceed with the assumption that the court had no power to review the earlier order, neither u/O. 43, R. 1, CPC nor on the application of the principle of res judicata. S. 6(2) of the Court Fess Act places a restriction on the jurisdiction of the Court. It clearly provides that the court may receive a memorandum of appeal in respect of which insufficient fee has been paid, but no such memorandum of appeal shall be acted upon unless the appellant makes good the deficiency in court fee within such time as may, from time to time, be fixed by the court. The lack of jurisdiction exists and shall continue in force till proper fee is paid, unless under some provisions the court acquires the jurisdiction to hear the appeal.;