1. The plaintiffs brought the suit as the nearest reversioners of the deceased son of defendant 1 and sought for a declaration that certain saledeeds executed by defendant 1 in favour of the other defendants were without legal necessity and not operative against the plaintiffs. The trial Court held that the plaintiffs had established that they were reversioners, but held that the sale deeds were executed for legal necessity and were operative against the plaintiffs and dismissed the suit. The appellate Court held that the saledeeds in question were not genuine transactions and were not executed for legal necessity. They represented bogus transactions entered into with a view to enable defendants 2, 3 and 4 to grab the widow's property from the plaintiffs.
2. A second appeal has been filed in this Court.
3. The learned vakil, appearing on behalf of the plaintiffs, has not challenged the findings of the lower appellate Court, but he contends that the appeals filed before the learned District Judge was barred by limitation.
4. It appears that the Munsif decided the suit on 16th March, 1917. The appeal was filed on 2nd April, 1917 and allowing time for preparation of the decree and the certified copy of the judgment and decree, it is conceded that this appeal was filed in time. The last date on which the appeal could have been filed was 14th April, 1917. But it has been pointed out that, though the appeal was filed on 2nd April, 1917, it was filed with insufficient court-fee. The office, having found this, reported the matter to the District Judge who allowed time till the 17th April, but as nobody appeared on that date the appeal was dismissed for default. The order sheet shows that, on the 24th April, an application was filed by the appellant in the Court below for the restoration of the appeal, on which the appeal was admitted and the deficit court-fee was paid by him on that date. No objection was taken at any time by the respondents in the Court below, i.e, the appellants in this Court, on the ground that the appeal was filed after the period of limitation allowed by law. But it is contended before me that though this objection was not taken in the lower appellate Court it could still be taken here and reliance has been placed on the case reported as Chaturbhuj Sahay v. Muhammad Habib(1). That case was however under Section 5 of the Lim. Act, and has no bearing on the present case. Assuming however that it could be raised here, I have to see whether the objection itself is sustainable. It is obvious that the District Judge acted under Section 149 of the CPC, in giving time to the appellant for the payment of the deficit court-fee till the 17th. True it is that there was no compliance with this order, but that the very fact that on the 24th April the learned Judge admitted the appeal implies that be acted under Section 148 of the CPC, and enlarged the time for the payment of deficit court-fee. I am confirmed in the view that I take of this matter, by a decision of this Court in Second Appeal No. 2210 of 1914 referred to in Gaya Loan Office, Ltd.…Plaintiff v. Awadh Behari Lal…Defendant .(2), where the learned Chamier, C.J, and Sharfuddin, J., held that the learned Judge, under similar circumstances, acted under Section 148 of the CPC.
5. It has been held in the case of Priya Nath Bachier v. Miajan Sardar(3) that a Judge, passing an order under Section 149 of the CPC, for payment of deficit court-fees must be taken, on the record as it stands, to have exercised his discretion as provided by the section, and an appellate Court cannot go into the question as to whether be exercised his discretion in making the various orders of payment properly. Much less would, then, this Court go behind that order in second appeal when the point was not taken at any stage in the Court below.
6. The case reported as Golab Chand v. Bahuria Ram Murat Koer(4) shows that the order under S. 148 enlarging the time for the payment of deficit court-fee was made by the Registrar, who had no power under the law to admit such applications. But in the present case the order admitting the appeal was made by the District Judge himself. Under these circumstances, I think the point that has been raised is untenable and I would dismiss this appeal with costs.
V.S/R.K
7. Appeal dismissed.