- (1.) THIS is a plaintiffs second appeal arising out of a suit filed by the plaintiff appellant against the defendant respondent under O. XXXIV, R. 4, C. P. C. for enforcement of the mortgage deed dated 15th July 1950. The suit was filed in forma pauperis on 11th July 1963. During the hearing of the application under O. XXXIII, R. 7, C. P. C. and after one of the plaintiff' s witnesses was examined on 20th February 1965 the plaintiff appellant gave a statement before the court that she was then in a position to pay the court-fee and two months' time be granted to her for the said purpose. On the same date the Civil and Sessions Judge, Mirzapur, before whom the said application was pending, passed the following order : " The applicant is now prepared to pay court-fee. Application to sue as pauper is dismissed. Court-fee should be paid within two months."
(2.) ON 20th April 1965 the plaintiff appellant again moved an application for grant of fifteen days' further time to pay the court-fee. This application was allowed and therefore on 5th May 1965 the plaintiff appellant paid the requisite court-fee and the application was thereafter ordered to be registered as a suit on 8th May 1965. The suit was contested by the defendant respondents on merits as well as on the ground that the suit was barred by time. It was stated that the court had no jurisdiction to extend the time for the payment of court-fee and as such the plaint would be deemed to have been filed only on 5th May 1965 when the court-fee was paid by the plaintiff appellant and if the date of the filing of suit is taken to be 5th May 1965 the suit was barred by limitation. The trial court, after examining the entire oral and documentary evidence on record, upheld the case of the plaintiff appellant that a mortgage deed was executed by the defendant respondent in lieu of a loan taken by him. The trial court further held that it had the jurisdiction to extend the time for payment of court-fee and as such the plaint would be taken to have been filed on 11th July 1968 and as such the suit was not barred by limitation. In view of these findings the trial court decreed the appellant' s suit for recovery of Rs. 9,300/- with interest pendente lite and future at the rate of four per cent per annum from the date of the suit on a sum of Rupees 5,000/-. The defendant respondent was allowed six months' time to make the payment failing which it was directed that a decree would be prepared under O. XXXIV, R. 4, C. P. C.
(3.) AGGRIEVED by the judgment of the trial court civil appeal No. 15 of 1967 was filed by the respondent. The lower appellate court only considered one issue in appeal, viz. as to whether the suit was barred by time or not. The lower appellate court came to the conclusion that the trial court had no jurisdiction to grant further 15 days time subsequent to the dismissal of the application to sue in forma pauperis and as such the suit was barred by time. In view of the above finding the suit was dismissed and the appeal was allowed on 13th September 1967. Against the judgment of the lower appellate court the present appeal has been filed in this Court. The only question to be considered in the present appeal is as to whether the court having initially granted time while dismissing the pauper application can further extend time under S. 149 of the Civil P. C. after the expiry of the time initially granted. Counsel for the appellant has contended before me that the instant case is a case of voluntary decision of the appellant to pay the court-fee and not a case of refusal by the court to the applicant to sue as a pauper under O. XXXIII, R. 7, C. P. C. and as such principles applicable in the case of a refusal of an application under O. XXXIII, R. 7, C. P. C. do not apply. His further contention is that since the provisions of O. XXXIII, R. 7 did not apply the application should be taken as a plaint deficiently stamped and the court in such circumstances can exercise its powers under S. 149 of the Civil P. C. if it is so satisfied.;