Ramaswami, J.:— The petitioner Mahanth Ramdas Chela had instituted a suit before the Subordinate Judge of Gaya asking for a declaration that he was the duly constituted Mahant of Moghal Kuan Sangat and of Bhandajore Sangat. When the plaint was originally presented it did not contain a relief for possession of the endowed properties. The suit was dismissed by the Subordinate Judge who found that the plaintiff had not established that he was initiated as a chela of Gulab Das, the previous Mahant, and further that the custom of nomination as alleged by the plaintiff was not proved.
2. The Subordinate Judge also found that Bhandajore Sangat and the properties described in touzi B/106 were in possession of the defendant although the plaintiff was in possession of the Moghal Kuan Sangat. The Subordinate Judge, therefore, held that the suit was barred under Section 42 of the Specific Relief Act. Against the decision of the learned Subordinate Judge, First Appeal No. 389 of 1947 was presented before the High Court. When the appeal came before us in the first instance, we gave a hearing to the parties and decided that the main question at issue should be answered in favour of the plaintiff and that a decree should be granted stating that the plaintiff was the duly constituted Mahant of Moghal Kuan Sangat and of Bhandajore Sangat and that he was entitled to be placed in the management of the endowed properties belonging to these two Sangats.
3. But the difficulty in the way of the plaintiff appellant was that in the plaint as originally presented there was no relief for confirmation or, in the alternative, for recovery of possession of the endowed properties. During the hearing of the appeal, the petitioner realised that the provisions or S. By Specific Relief Act, might stand in his way and therefore amended his plaint by asking for additional relief for confirmation or in the alternative for recovery of possession of the properties attached to the two Sangats. In view of the amendment made in the plaint, we called for a report horn the Subordinate Judge on the question of valuation so that the suit might lie properly valued and the plaintiff might be granted an opportunity to pay the court-lees. On 30-3-1954, we heard the parties again in the matter of valuation and deckled that the plaintiff should pay ad valorem court-fee on the amount of Rs. 12,178-4-0 in the trial court and also on the memorandum of appeal in the High Court; we granted the plaintiff three months time to pay the court-fee for the trial Court and also for the High Court. It is necessary that the operative portion of this order should be quoted in Cull:
“We grant the plaintiff three months' tune to pay the court-fee or the trial Court and also for the High Court. The time will he computed from the date Counsel for the appellant is informed of the calculation by the Deputy Registrar of the High Court. II the amount is not paid within the time given, the appeal will stand dismissed.
If the court-fee is paid within the time given, the appeal will he allowed with costs and the suit brought by the plaintiff will stand decreed, with costs and the plaintiff will be granted a decree declaring that he is the duly constituted Mahanth of the two Sangats (Moghal Kuan Sangat and Bhandajore Sangat) and that he is entitled to recover possession of all the properties mentioned in the amended plaint so far as the Bhandajore Sangat is concerned and/or confirmation of possession so Jar as the Moghal Kuan Sangat is concerned.”
4. It appears that the High Court office intimated to Counsel for the petitioner on 8-4-1954 that the deficit court-fee payable was Rs. 1987-8-0. The petitioner did not pay the court-fee within the time allowed. On 7-7-1954, the petitioner applied to the Vacation fudge. Choudhary J., for extension of time on the ground that the petitioner had suffered from an attack of influenza and could not arrange for the money. Choudhary J. ordered that the matter should be placed before a Division Bench. On 13-7-1954 the petition for extension of time was placed before me and Ahmad J. We rejected the petition on the ground that by the order of the Bench dated 30-3-1954, the appeal had already stood dismissed as the amount was not paid within the time given. Thereafter, the petitioner filed an application under Section 151 of the CPC asking that the order of dismissal should be set aside and the appeal should be restored and that time should be extended for payment of the deficit court-lev. This petition came up before the Chief Justice and Narayan J. who heard the parties on 2-9-1954, and rejected the petition on the ground that the order of the Bench dated 30-3-1954, was a final order and not an interlocutory order and there was no power in the High Court to restore the appeal under Section 151 of the CPC.
5. The learned Judges referred to O. 7. R. 11 of the CPC and said that the decision of this Court dated 30-3-1954, was equivalent to a decree and could net be set aside by a proceeding under Section 151 of the CPC but might be open to review. In reaching the conclusion, the learned Judges followed a previous decision of this Court in Rameshwardhari Singh v. Sadhu Saran, AIR 1923 Pat. 354 (A) in which it was held that where the plaintiff Jailed to make good a deficit in the court-fee due on the plaint, and the plaint was rejected, the Court had no newer to restore the suit either under Section: 151 or under O. 9, R. 9 of the CPC.
6. The petitioner, however, prayed before the Bench that the application under S. 151 might be treated as an application for review under O. 47. R. 1 and prayed for a month's time to pay the requisite court-fee. This prayer was granted by the learned Judges and they ordered that the application should be treated as an application for review and the petitioner should be granted one mouth's time for paying the requisite court-fee.
7. In compliance with this order, the petitioner has paid the court-fee payable on the review application.
8. The first question in this case is whether the petitioner has made out a sufficient case for review of the order of this Court dated 30-3-1954. Order 47, R. 1 is enacted in the following terms:
“(1) Any person considering himself aggrieved
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made, the order.”
9. It is now settled by high authority that though the strict rule of ejusdem generis does not apply, the expression “any other sufficient reason” in O. 47. R. I of the CPC must be interpreted to mean a reason sufficiently analogous to the other two grounds specified in the rule, namely, discovery of new and important matter or some error or mistake apparent on the face of the record.
10. This is the view taken by their Lordships of the Judicial Committee in Chhajju Ram v. Neki. AIR 1922 P.C 112 (B). In the present case, the ground taken by the petitioner in the review application is that he fell ill of influenza subsequent to the passing of the order of the Bench of this Court on 30-3-1954, and there one he was not in a position to arrange for the payment of the court-fee. It is obvious that this is not a ground for review falling within the ambit of O. 47. R. 1.
11. It is obvious that the ground for review under O. 47, R. 1 must be at any rate something which existed on the date of the decision or decree, and the rule does not authorize the review of a decree or decision which was right when it was made on the ground of the happening of some subsequent events (sec. the judgment of Lord Davey in Kota girl Venkata Subbama Rao v. Vellanki Venkatrama Rao, 27 I.A 197 at p. 205 (P.C) (C).
12. In the present case, the petitioner has applied for review of the decree on the ground that he was taken ill subsequent to the date of the decree. Even assuming that the petitioner had fallen ill subsequently and that he was unable to arrange for payment of the court-fee, that would not, in my opinion, confer jurisdiction on the Court to review the order dated 30-3-1954, under the provisions of 0-47, R. 1 of the CPC.
13. On behalf of the petitioner Mr. Baldeva Sahav then put forward the argument that time may be extended under S. 148 or Section 149 of the CPC. I am unable to accept this argument as correct. In order to act under S. 148 or S. 149 the Court must retain the control of the proceeding and the order which was passed must not be a final order. That is, I think, the effect of the language used by the Legislature in Ss. 148 and 149. Section 148 states:
“Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by 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.
14. Section 149 enacts:
“Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fee has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance”.
15. In S. 148, the expression “from time to time” is significant. Again, in S. 149, the phrase “at any stage” is important to be noticed. I, therefore, consider that on a correct interpretation the provisions of Ss. 148 and 149 apply only to proceedings which are not terminated and only to cases where the Court retains control of the proceedings. This view is also supported by the decision of the Calcutta High Court in ‘Khajeh Habibulla v. Asmotar Khatun’ AIR 1923 Cal. 612 (D) and the decision of the Allahabad High Court in ‘Beni Prasad v. Om Prakash’ AIR 1938 All. 497 (E). The same view has been taken in another Calcutta case ‘Haji Eakub Shaikh v. Samjan Bibi’ AIR 1940 Cal. 275 (F) in which it was held by Edgley J. that S. 148 did not apply to a decree or order of a final character made by the Court and that the acts contemplated must relate to the acts authorised or prescribed by the Code preliminary to or during the course of the trial of the case before final order is actually made.
16. In the present case it cannot be doubted that; the order of the Bench dated 30-3-1954 is a final order. It follows therefore, that the provisions of Ss. 148 & 149 do not apply and this Bench has no jurisdiction to grant an extension of time for payment of the court-fee.
17. Lastly, Mr. Baldeva Sahay made the submission that time may be extended in exercise of the inherent jurisdiction of this Court under Section 151 of the CPC. But the submission cannot be accepted in view of a series of decisions of this
18. Court holding that an order rejecting a plaint for non-payment of deficit court-fee is tantamount to a decree and the Court has no power to restore the suit in exercise of its inherent jurisdiction. That is the view taken in AIR 1923 Pat. 354 (A) and that is also the view taken in this very case by the Chief Justice and Narayan J. in their order dated 2-9-1954. There is also a Full Bench decision of this Court to the same effect ‘Radhanath Jha v. Bacha Lal Jha’ AIR 1955 Pat. 370 (G). I, therefore, consider that the petitioner cannot be given an extension of time for payment of court-fee in exercise of the inherent power of jurisdiction of this Court.
19. In the course of argument Mr. Baldeva Sahay referred to three authorities — ‘Adit Prasad Singh v. Ramharkh Ahir,’ AIR 1925 Pat. 435 (H) Abdul Shaker v. Abdul Rahiman, AIR 1923 Mad. 284 (I), & —‘Nand Rani Kuer v. Durga Das Narain”, AIR 1924 Pat. 387 (J). But I do not think that these authorities are of any assistance to the petitioner. In the first case AIR 1925 Pat. 435 (H), a litigant handed over to his pleader the balance of the court-fee due on a plaint, and the pleader's clerk to whom the money was entrusted to be paid into court, misappropriated the same and Sled bogus applications for time to pay the deficit court-fee with the result that the Court ultimately rejected the plaint.
20. It was held by the Bench that after having paid the money to the pleader who was a duly constituted agent and officer of the Court under the Legal Practitioners Act and the rules of the High Court and whose duty it was to deposit it in Court, the responsibility of the plaintiff ceased until he was informed of the default. It was, therefore, held that the plaintiff was entided to ask the trial Court to set aside its decree and to restore the case “whether the application be deemed to be one under Ss. 151, 149, 148 and 147 or O. 47, R. 1.”
21. It is obvious that this was a decision of the High Court on special set of facts. The decision may perhaps be supported on the ground that there was fraud practised upon the Court by an officer of the Court and the plaintiff should not be injured by such fraudulent conduct and the decree obtained by practice of fraud on the Court should not be allowed to stand. It should, however, be noticed that the learned Judges have not taken into account the provisions of O. 20 R. 3 of the CPC and the previous decision of this Court in AIR 1923 Pat. 354 (A). I do not, therefore, consider that the decision in AIR 1925 Pat. 435 (H) applies to the case of the petitioner.
22. The next case to which Mr. Baldeva Sahay referred is AIR 1923 Mad. 284 (I).
23. In that case a suit was brought for specific performance on a contract for sale of certain lands and the trial Court passed a decree directing the defendant to execute a conveyance on the plaintiff paying the price within a certain time. The defendant preferred an appeal to the High Court against the decree. It was argued on his behalf that the plaintiffs had not paid the decretal amount within the prescribed time and as the decree had become infructuous and, therefore, the appeal should be allowed without going into the merits.
24. The respondent, however, pointed out that be had applied to the trial Court for extension of time given in the decree before the time had expired and the application had been ordered by the trial Court to lie over pending the appeal. In the circumstances it was held by the High Court that the Appellate Court had power to extend the time limited by the original decree, and that the trial Court had still jurisdiction in the matter and had full powers to deal with any point that might arise, including, if necessary, an application for further time. The decision of the High Court was based upon the view that the decree of the trial Court was in the nature of a preliminary decree.
25. It was also pointed out that the decree of the trial Court did not provide for dismissal of the suit in default of payment within the time prescribed. So by reason of the default, the proceedings were not dead but were in a comatose condition. In the present case, the material facts are obviously different. The decree passed by the High Court on 30-3-1954, is not in the nature of a preliminary decree;
26. Further there is a provision in the decree of this Court that in default of payment of court-fee within the time prescribed, the suit would stand dismissed. No such provision was made in the I decree which was the subject-matter of decision in the Madras case. In that case, Sehwabe C. I also referred to the English practice with regard to strife, for specific periortnauce of contract and in said feat in English Courts no limit of time is fixed in the judgment for payment of the purchase money and there is no attempt to make payment of the purchase, money at a certain date a condition of the continuasce of the rights under the judgment. I do not, therefore think that the ratio of the Madras case, AIR 1923 Mad 284 (I) has any application to the present case.
27. The third case to which Mr. Baldeva Sahay referred, is AIR 1924 Pat 387 (J), In that case there was a compromise decree which provided that on the defendant's failure to pay the decretal amount by a certain date, the plaintiff should be entitled to a ??? sum of money. It was held by the Bench that the Court had jurisdiction to give relief by extending the time fixed for payment without the consent of the parties.
28. The learned judges proceeded on the principle that a consent decree cannot have greater validity than the compromise itself, and if the consent decree gam effect to an agreement which embodies the right of forfeiture, the Court is competent in the esercase of its equitable jurisdiction to grant such relief against forfeiture as it might have granted if there had been no consent decree and the suit had been instituted to enforce the compromise. That was the principle laid down by Sir Ashutosb Mookesjee in — ‘Kandarpa Nag v. Banwari Lal Nag’, AIR 1921 Cal 356 (2) (K) which was followed by the Bench in AIR 1924 Pat 387 (J).
29. Sir Ashutosh Mookerjee repressed the view that it is an incident of the contractual relationship that the right of forfeiture, is subject to equitable relief to be granted by the Court and even if the compromise is embodied in a decree of the Court, stiff the party will be entitled to apply for relief against forfeiture and the party cannot be taken to have renounced such equitable relief it is obvious, therefor that the decision in AIR 1924 Pat. 387 (1) is based upon a special doctrine of equity and it has no application to the present case.
30. I held therefore, that the application made by the applicant for extension of ??? for ??? of court-fee is not competent & must be dismissed. I have considerable sympathy towards the plaintiff petitioner who has placed ??? in an unfortunate position, but wo ??? be ??? not to allow our sympathy to affect ??? Judgment. To quote the language of Farwell J. in another contest “sentiment is dangerous will ??? the wisp to take as a guide in the search for legal ??? ‘Latham v. Johnson’, (1913) 1 KB 398 (L). I would accordingly dismiss the application made by the plaintiff petitioner, but in the circumstances of the case do not propose to pass any order for costs of this application.
Sinha, J.:— I agree to the order proposed.
V.S.B
31. Application dismissed.