Modi, J. - (1.) THIS is an appeal by the defendant Ratanlal in a suit for redemption of mortgage. Ratanlal died during the pendency of the appeal and he is represented by his son Amar Singh. The respondents, who were plaintiffs in the trial court, brought the suit on the allegations that Mst. Parwati, the widow of Bherondas had mortgaged the suit house with Ratanlal for Rs. 801/- on Svt. 1974 Pos Sudi 7, and further sum of Rs. 199/- was borrowed by her from the mortgagee. The plaintiffs' case further was that Mst. Parwati's husband Bherondas was the great grandson of Naraindas and that the plaintiffs were the descendants of Harakchand and Moolchand, being their sons and grandsons and that Harakchand and Mool Chand were the grandsons of Naraindas and they were, therefore, the next reversioners of Mst. Parwati and as such were entitled to bring a suit for redemption of the suit property. The plaintiffs further alleged that the defendant Ratanlal had assigned his rights to one Anraj, defendant No. 2 on the 23rd of February, 1931, and had made over possession of the suit house to the latter along with the relevant document. The plaintiffs, therefore, prayed that redemption be allowed to them on payment of Rs. 1001/- to whichever of the defendants was entitled to receive the said amount. Anraj is said to have died during the pendency of the first appeal in the court of the Senior Civil Judge, Jodhpur and was represented in this appeal by respondent No. 14 Banraj. Banraj also died during the pendency of this appeal and I am informed that the appellant has not brought his legal representative or representatives on this record inasmuch as when Anraj was examined in the trial court, he had stated that he had nothing 13 do with the suit house and he had transferred it back to Ratanlal. The suit was resisted by Ratanlal whose main plea was that his wife Mst. Rupali was the daughter of the deceased Bherondas, husband of Mst. Parwati, mortgagor and that after Mst. Parwati's death, she was the next heir entitled to Mst. Parwati's property and as such she (i. e. Mst. Roopali) had redeemed the mortgage from himself and, therefore, Mst. Rupali was the owner in possession of the same in her own right. It may further be pointed out that in his written-statement Ratanlal did not admit the pedigree-table filed by the plaintiffs showing their relationship to the deceased Bherondas and put the plaintiffs to proof thereof. What transpired at the trial was that the court wanted Ratanlal to produce certain documents relating to the suit mortgage and the latter failed to produce them, whereupon by its order dated the 8th of September, 1919, the trial court struck off Ratanlal's defence and proceeded with the trial on that footing. Eventually, the trial court passed a decree for redemption against Ratanlal in favour of the plaintiffs respondents on payment of Rs. 1001/- by the plaintiffs to him. The defendant then went up in appeal to the District Judge, Jodhpur, from whose court the appeal was transferred to the court of the Senior Civil Judge who finally disposed of it. THIS appeal was dismissed on two grounds : first that the defendant's appeal was barred by time; and secondly, that the order of the trial court striking off Ratanlal's defence being an order passed under O. XI, R. 21 of the Civil Procedure Code was appealable under O. XLIII, R, 1 clause (f), and, as no appeal therefrom had been filed, that order had become final ; and consequently, it was not capable of being challenged in an appeal from the final decree. It is from this judgment and decree that the present appeal has been filed.
(2.) THE first question which arises for determination in this appeal is whether the learned Judge of the lower appellate court was right in dismissing the defendant's appeal as barred by time. THE relevant facts and dates in this connection are these. THE trial court passed its decree on the the 21st of November, 1950. THE date fixed for supply of the necessary copies was 26th of December, 1950, but; as the copies were not ready on that date, they were supplied to the defendant on the 22nd of January, 1951. It is said that the copies had been prepared earlier on the 16th of January, 1950, and were ready for delivery on that date, but as the defendant had on notice thereof, the fact that the copies were ready on 16th of January, 1951, is of no materiality and cannot affect limitation. It is conceded before me that the last date for filing the appeal in these circumstance was 26th of January, 1951, but as that day was a holiday, the appeal was filed on the 27th of January, 1951. THE appeal was, however, filed on the 27th of January, 1951, on a court-fee of Rs. 50/-only as against the court-fee payable being Rs. 75/-, and it is this factor which has caused all the trouble about limitation in this case. If the appeal had been filed on the 27th of January, 1951, on full court-fee, no question of limitation would have arisen at all. THE office reported on the 27th of January, 1951, that the appeal had been filed on deficient court-fee and that the deficiency amounted to Rs. 25/-worth of stamps. When the matter came to the notice of the court, a notice was directed to issue to the defendant-appellant asking him to make good the deficiency by 5th of February, 1951. THE notice was dated the 3rd of February, 1951. As this notice was not served, another notice was ordered to be issued on the 5th of February, 1951, and the matter was to come up for hearing before the court on the 8th of February, 1951. Learned counsel Shri Kalla for the defendant appeared on that date, and said that the deficiency had been made good on the 29th of January, 1951, which however was not a correct statement. Actually Stamps worth Rs. 25/- were filed in court on the 31st of January, 1951, and the order passed by the court then was that these should be put up with the file. On the 15th of February, 1951, the appeal was ordered to be registered by the Dist. and Sessions Judge, Jodhpur and notices were ordered to be issued against the respondents. It is in these circumstances that the question of limitation has arisen. THE Senior Civil Judge, as already stated, was of the opinion that the appeal was barred by time. His reasoning was that O. 7, R. 11, of the Civil Procedure Code did not apply to appeals and, therefore, the court was not bound to give any notice to the appellant to fulfill the deficiency of stamp as in the case of a plaint. He also took into account that the appellant had not filed any application under sec. 149 of the Code of Civil Procedure for extension of time and, therefore, no question for extension arose. THE learned Judge was also of the view that the court never actually condoned the delay in the filing of the appeal when it directed the stamps to be put up with the file. On these facts and circumstances, the learned Judge held that "the memorandum of appeal as filed on 27th January, 1951, was insufficiently stamped and that the deficiency was made up on 31st January, 1971, i. e. after the expiry of the period of limitation. THE appeal is, therefore, time-barred. " It was strenuously contended before me on behalf of the defendant appellant that the view of the court below that O. VII, R. 11, did not apply to appeals was wrong and that the true position was that O. VII, R. 11 read with sec. 107 of the Civil Procedure Code was applicable to appeals also. Learned counsel placed reliance on Achut Ramchandra Pai vs. Nagapa Bab Balgaya (1 ). Jai Singh Gir vs. Sitaram Singh (2), Deoraj vs. Kunj Bikari (3), Har Prasad vs. Kapurthala Estate (4), Bahuriya Ramsawari Kuer vs. Dulhin Motiraj Kuer (5), Sarjug Prasad Sahu vs. Surendrapat Tewari (6), Ramgati Singh vs. Shitab Singh (7), Gajadhar Bhagat vs. Motichand Bhagat (8), Against these authorities, the cases relied on, by the plaintiff-respondent, as taking the view that the provisions of O. VII, R. 11 were not applicable to appeals and the power to extend time for supplying the deficiency of stamps was entirely discretionary dependant on the facts and circumstances of each case are these Akharaju Narayana Rao vs. Akharaju Seshamma (9), Lekhram vs. Ramji Das (10), Brijbhukhan vs. Totaram (11), Atmaram vs. Singhai Kasturohand (12), In re S. M. Khatumennessa Bibi (13), Pamidimukkala Sitharamayya vs. Ivaturi Ramayya (14), Balwant Singh vs. Jagjit Singh Vendee) Vendor (15 ). It is clear that there is a fairly serious conflict of judicial opinion on this point. My attention was, however, invited to an unreported decision of a Bench of our court in Bijailal vs. Daulal (Civil First Appeal No, 4 of 1950, decided on the 13th of December, 1950) in which the learned Judges who disposed of the appeal took the view that O. VII, R. 11 had no application to appeals. There is no reported decision of this Court on this point, and I would therefore, not pursue the point further and take it for granted for the purpose of the present appeal that O. VII, R. 11, is not applicable to appeals, It was, however, contended before me in this appeal that independently of the question of the applicability of O. VII, R. 11 to appeals, the defendant's appeal before the lower appellate court had been ordered to be registered on the 15th of February, 1951, by the learned District Judge and, therefore, the delay in filing the deficit court-fee stood impliedly condoned. I may point out at once that the Bench decision of this Court referred to above did not involve any consideration of the point raised before me. The question for determination, therefore, is whether the contention raised on behalf of the defendant that the delay in filing the deficient court-fee after the period of limitation had been condoned by implication by the District Judge is correct. In the case of Qarum vs. Dewa Singh (16), a memorandum of appeal had been filed along with an application for leave to file a letters patent appeal. The memorandum was filed without court-fee. The application for leave to appeal after the period of limitation for filing the appeal had expired. The memorandum was laid before a Bench which admitted the appeal. It was contended on behalf of the respondents that the appeal should be considered to have been properly presented when the necessary court-fees stamps had been affixed and that on that view it was barred by time. Tekchad J. held that there was no force in this contention as, in the circumstances, the Bench which admitted the appeal should be considered to have condoned the delay under sec. 149 of the Code of Civil Procedure. The learned Judge sought help in arriving at this conclusion from a decision of their Lordships of the Privy Council in the case of Faizullah Khan vs. Mauladad Khan (17) in which their Lordships observed that "discretion under sec. 149 C. P. C. extends to the whole or any part of any fee prescribed and can be exercised at any stage in the case, while finally upon the extra payment being made, the document is to have the same effect as if it had been paid in the first instance. " Their Lordships, also held that as the memorandum of appeal would stand good from its date on the additional payment having been made, the appeal should be held as within time. Again in the case of Singasan Tiwari vs. Gaya Tewari (18), a memorandum of appeal was filed on insufficient court-fee stamp. Limitation for the period of appeal expired on the day when the appeal was filed, but the court did not reject the memorandum of appeal and noted that the pleader would be heard on the question of deficit. The deficit was made good on the next following day and the stamp was cancelled and accepted in the District Judge's office. The District Judge, however, rejected the appeal. On appeal to the High Court, it was held that when the memorandum of appeal was filed, it was open to the District Judge to reject it at once as the document was insufficiently stamped and if he did not do so, it was open to the Judge to allow the deficit to be made good, whether the document had been accepted by inadvertence, or expressly under sec. 149 of the Civil Procedure Code, and that when the deficit was allowed to be made good, the effect of the acceptance of the deficit court-fee was that the memorandum of appeal must be treated as if it had been sufficiently stamped on the day of presentation. The case before me almost resembles the one which I have cited above. I need not multiply authorities. The principle which is deducible seems to me to be this that when a party pays deficit court-fees beyond the time fixed, and has not asked the court to extend the time, but the court nevertheless admits the appeal and receives the fee, the only reasonable interpretation is that the court has, implicitly, though not explicitly, extended the time, and this it can do within the meaning of sec. 149 even though the period of limitation has expired. It was strenuously contended in this connection on behalf of the plaintiff's-respondents that an application under sec. 149 of the Civil Procedure Code was and would be necessary in order to attract the application of that section, and that where such an application has not been filed, no question of extension or a retrospective validation could arise. I may state, however, that the decided cases do not seem to me to establish such a requirement. It is certainly open to a court to grant an extension of time by an express order under sec. 149, and this is clearly provided for under sec. 149 C. P. C. There may be cases, however, in which no such express extension is granted, and all the same, stamps have been accepted and are cancelled and an appeal is ordered to be registered or admitted, and in such cases also, the view has been taken that there has been an implied condonation by the court of the delay in filing the deficit court-fees. So far as the case before me goes, it seems to me that it stands on a stronger footing. When the appeal was presented on the 27th of January, 1951, an office report was made on the 29th of January that there was a deficiency of court-fees stamps to the extent of Rs. 25/ -. The court then directed notice to issue to the defendant-appellant that it must make good the deficiency by the 5th of February, 1951. The deficit stamps were supplied within the time allowed on the 31st of January 1951. In these circumstances it is only fair to hold that the court did permit time to file the deficit stamps within the time fixed by it and this the court could certainly do under sec. 149 of the Civil Procedure Code without any doubt, and it further follows that, upon such payment, the document in respect of which the deficiency was to be made good must have the same force and effect as if such fee has been paid in the first instance, I desire in this connection to draw special attention to the words "at any stage" occurring in sec. 149 of the Civil Procedure Code, and these words, in my opinion, clearly contemplate that the court could order a deficiency in stamps to be made good, even after the period of limitation for filing an appeal has expired. In this view of the matter I feel strongly persuaded to come to the conclusion that the learned District Judge, when he had, in the first instance, asked the deficiency in stamps to be made good by the 5th of February, and later when he had admitted the appeal on the 15th of February 1951, had certainly exercised his discretion within the meaning of sec. 149 of the Civil Procedure Code and the delay in filing the deficit court-fee was to stand condoned to all intents and purposes, and I hold accordingly. The next question which arises for consideration is whether the order passed by the trial court striking off the defendant-appellant Ratanlal's defence by its order dated the 8th of September 1949 was properly passed under Order 11, Rule 21 and if it was not whether it could not be attacked in any appeal from the decree itself for the reason that that order being appealable, it could be made the subject-matter of appeal. This brings me to a consideration of the provisions of Order XI, Rule 21 and the circumstances in which the order in question came to be passed in the court of first instance. Order XI, Rule 21 is in these terms: "where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made accordingly. " It is clear that an order under this rule can be made only on three grounds; - (1) the refusal to answer interrogatories under R. 11; (2) the refusal to make discovery of document under R. 12 ; and (3) the refusal to permit inspection of document under R. 18. It may also be pointed out that the rule enacts a highly penal provision and so the conditions pre-requisite to its application must be clearly fulfilled before a party can be punished under it. I now turn to the relevant circumstances under which the learned trial Judge struck out Ratanlal's defence. On the 9th of July, 1949, the ex parte order which had been made earlier against Ratanlal was set aside and Mst. Rupali was called upon to produce all the documents in her possession. Mst. Rupali was no party to the case and it does not appear that any party had applied for such an order to be made. No provision of law has been brought to my notice under which such an order could have been made. Be that as it may, on the 18th of August, 1949 which was the next following date, the court ordered that no "tamil" of the order passed on the previous date had been made, and therefore, the order should be issued forthwith. On the 25th of August. 1949 Mst. Rupali was given a sort of go-by, and instead it was said that counsel for the defendant wanted time to produce the document. It may be pointed out again that the defendant had not till this date been called upon to produce the documents. Then came the date, namely the 8th of September, 1949, on which the final order was passed. The learned Judge said that the defendant and his counsel were absent and that the defendant had failed to produce the documents in original in spite of his having taken an adjournment for the purpose and that it was clear that he did not want to produce the documents and therefore his defence be struck off. Now, from the terms of O. XI, R. 21, set forth above, it is clear that even assuming that the defendant had been called upon by the court to produce certain documents in original and that he had failed to do so - although I should like to add that the defendant had never been called upon by the court to produce any such documents - it cannot be postulated that rule 21 ii at all attracted into application. Refusal to produce certain documents (see O. XI, R. 14,) is not a lapse within the meaning of Rule 21 at all and, therefore, the penal consequences prescribed thereunder could not have been imposed. There is ample authority for holding that an order for production of documents under Rule 14 is not one of the orders contemplated under this rule and, therefore, any disobedience thereof could not be punished under O. 11 R. 21 (See L. Sugar Mills vs. R. C, G. Sahai Cotton Mills (19),) Subbayyar vs. M. L. M. Ramanathan Chettiar (20), S. P. S. R. Subramania Ayyar vs. C. Bomer Cooty Haji (21), Manohar Das vs. Barbara Singh (22), Tafazzul vs. Shah Mokammad (23), Shyamlal Guruprasad vs. Ganpatlal (24 ). These cases clearly establish the principle that the non-compliance with an order under O. XI, R. 14 does not and cannot warrant the dismissal of the suit of a plaintiff or the striking off of the defence of the party which is guilty of the non-compliance of the order as such non-compliance does not fall within the ambit of the three grounds which are stated in the rule and which only would justify the striking off of the defence. It may further be pointed out in this connection that where a party fails to produce certain documents under O. XI, R. 14, the court would be entitled to raise an adverse presumption against that party on account of the non-production of the docu-ments required but that would not justify its dismissing a suit in the case of a plaintiff or striking off of the defence in the case of a defendant. It has to be emphasised in this connection, and I would do so even at the risk of repetition, that the provisions of this rule are of a very drastic nature, and it is only in rare cases that the visitation of the penalty contemplated under the rule should be resorted to. Bearing these principles in mind, I have no hesitation in coming to the conclusion that the order passed by the court of first instance striking off the defence of Ratanlal was wholly without justification and that in passing that order that court exercised jurisdiction which did not vest in it in accordance with law. It necessarily follows that the order passed was wholly bad and that the order was not overed by O. XI, R. 21, of the Civil Procedure Code at all. It would, therefore, follow, in my opinion, that where a court acts without jurisdiction in passing an order under this rule as where it dimisses a suit or strikes off a defence for failure to comply with an order to produce documents under rule 14, the order cannot be said to be one passed under this rule, and, consequently, it cannot be urged that the order was an appealable one and as no appeal was filed therefrom, it could not be challenged in any further appeal from the decree. This contention is not without force. But even assuming that this contention is wrong and that the order passed by the trial court must be taken to be an older under O. XI, R. 21, I am of opinion that the learned Senior Civil Judge was wrong when he held that the order had become final inasmuch as the defendant-appellant had not filed any appeal from it but chose to attack it in the appeal from the final decree. I would invite attention in this connection to the terms of sec. 105 of the Code of Civil Procedure. It enacts that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. The expression used in sec. 105 is "any error, defect or irregularity in any order affecting the decision of the case. " (The underlining is mine ). This, to my mind, clearly indicates that even in the case of an appealable order, provided that it affects the decision of the case, either an appeal can be filed straightaway from it, or it may be attacked in an appeal from the final decree except in the case of an appealable order of remand. This view is amply supported by weighty authority and there is little warrant for the proposition, as the Jaw stands, that a party who considers himself aggrieved by an interlocutory order which is appealable must file an appeal from it under the penalty that if he does not do so, he forfeits the right to challenge such an order before the appellate court for ever. It may be pointed out in this connection that under the former Civil Procedure Code, when the language of sec. 591, which corresponds to sec. 105 of the present Code, was not quite clear, the Privy Council in 1859, while dealing with the contention in Maharajah Moheshur Singh's case (25) that the order granting the review being an appealable order and having not been appealed from could not be challenged in any appeal from the final decree, made the following observations - We are of opinion that this objection cannot be sustained. We are not aware of any law or regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, Under the penalty, if he does not so do of forfeiting for ever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be mote detrimental to the expeditious administration of justice than the establishment of a rule which would Impose upon the suitor the necessity of so appealing) whereby on the one hand he might to harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities. We believe there have been very many cases before this Tribunal in which their Lordships have deemed it to be their duty to correct erroneus interlocutory orders, though not brought under their consideration until the whole cause had beend decided, and brought hither to by appeal for adjudication. The Privy Council reiterated the same view in 1865 in Sheonath alias Buray Kaka vs. Ramnath, alias Chhotay Kaka (26) Sec. 591 was replaced by sec. 105 with a slight change in the present Code so as to bring out the above meaning clearly. To my mind, its language plainly connotes, first, that "orders" are as a rule not appealable save where they are made appealable by an express provision (See Order 43 Rule I); and secondly, that in any appeal from a decree, any error, defect, or irregularity in any order whether appealable or non-appealable, may be attacked provided that such error, defect or irregularity do affect the decision of the case i. e. on the merits, and lastly, sub-sec. (9) provides an exception to the rule above stated and lays down that an appealable order of remand wade after the commencement of the Code must be appealed from directly, if at all, and if not so attacked it becomes conclusive and cannot be questioned in any appeal from the final decree. If the above analysis of sec. 105 is correct as it undoubtedly is. it follows that an interlocutory order - and it does not matter whether it is appealable or unappealable - may be attacked in any appeal from the final decree, provided of course it is an order that affects or is likely to affect the decision of the case on the merits (also see Skeikh Mohammed Najibazzaman vs. Sheo Sankar and another (25) and Pullipurath Parameswaram Nambisan's son, family head and Manger Narayanan Nair vs. Thachara-kunnathil Puthen Veettil Madathil Narayani Amma's son Kirshnan Nair (26) Judged by this test, the position in the present case is that the order striking off the defence of the appellant is clearly one affecting the decision of the case within the meaning of sec. 105 and was therefore capable of being questioned in the defendant's appeal from the decree of the trial court in the lower appellate court. Consequently, I hold that the learned Senior Civil Judge was wholly wrong when he threw out the appeal of the defendant on' the ground that he was not entitled to question the soundness of the order in question in the appeal before him.
(3.) 1 have already held above that the order of the trial court striking off the defence under Order 11 Rule 21 was entirely wrong, arbitrary and without jurisdiction and this cannot therefore be sustained. Before 1 conclude, I might briefly dispose of an application which was filed on behalf of the plaintiff's-respondents in this Court at the time of arguments, in which it was stated that after the present appeal had been instituted, Mst. Rupali had filed a suit against the present respondents for a declara-tion that she was the owner of the suit house and that this suit had been dismissed for default under Order IX Rule 8 lead with Order XVII Rule 2 of the Code of Civil Procedure, by the trial court on the 23rd of August 1955. It was contended that as Ratanlal's defence was that his wife Mst. Rupali was the lawful owner of the suit house in her own right and that she had redeemed it from Anraj and that as Mst. Rupali's suit had been thrown out, on account of her own fault, this appeal becomes infructuous and, therefore, this Court should dismiss the defendant's appeal in spite of the findings recorded above. I have examined this contention, and, as at present advised, 1 am of opinion that there is no force in it. It is true that Ratanlal's defence was that his wife was the owner of the property and that she had redeemed the mortgage. At the same time, it cannot be forgotten that the position of the plaintiffs-respondents was and is that Ratanlal was the real mortgagee and that Mst. Rupali was being merely used as an instrument for his own purpose, he that as it may, it is contended before me on behalf of the defendant-appeliant that one of the contentions raised by Ratanlal in his Jawabaawa was that the geneological table filed by the plaintiff-respondents was wrong and that it the case goes for further trial according to law, it would certainly be open to the defendant-appellant to press this contention, ana it would be for the plaintiffs-respondents to prove that the pedigree produced by them was correct and entitled them to bring their present suit for redemption, beir> g heirs of Mst. Parwati widow of Bherondas. This contention is not without force, and 1 am, therefore, not prepared to hold the appeal as infructuous, and overrule this contention. The result is that for the reasons explained above, I allow this appeal with costs, set aside the judgment and decree of the Senior Civil Judge and send the case back to the trial court for fresh disposal in accordance with law. Costs hitherto and hereafter shall abide the result. As the case is an old one, the that court will dispose of it expeditiously. .;