Judgment

HIDAYATULLAH, J. : The appellant who was plaintiff in a title suit in the Court of the Subordinate Judge II, Gaya, has appealed against the dismissal of his suit by the High Court at Patna, with a certificate from the Court. In the suit he had asked for a declaration that he was nominated Mahant of Moghal Juan Sangat by his Guru, Mahanth Gulab Das, by a registered deed dated October 21, 1944, and that he had thus the right to manage the Sangat and other off-shoots thereof. His suit was dismissed by the trial Judge on May 31, 1947. He then appealed to the High Court at Patna, and on November 26, 1951, the appeal was decided in his favour on condition that he paid court-fee on the amended relief of possession of properties involved in the suit, for which purpose the case was sent to the Court of First Instance for determining the value of the properties and for fixing the amount of court-fee to be paid. After the report from the Subordinate Judge was received, the case was placed for final orders before the High Court. V. Ramaswami, J. and C. P. Sinha, J. (as they then were) held that the valuation for the purpose of the suit was Rs. 12,178-4-0, and that ad volorem court-fee was payable on it. They, therefore, made a direction as follows:-

"The High Court office will calculate the amount of court-fee payable on the valuation we have given and communicate to the counsel for plaintiff-appellant what is the amount of the court-fee he has got to pay both on the plaint and on the memorandum of appeal. We grant the plaintiff three months time to pay the court-fee for the Trial Court and also for the High Court. The time will be computed from the date counsel for appellant is informed of the calculation by the Deputy Registrar of the High Court. If 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 be allowed with costs and the suit brought by the plaintiff will stand decreed with costs and the plaintiff will be granted a decree declaring........".

2. The office of the High Court gave intimation on April 8, 1954, that the deficit court-fee payable was Rs. 1,987-8-0. The time was to expire on July 8, 1954: but the appellant was not able to find the money, It appears that the appellant s advocate in the High Court asked the case to be mentioned before the Vacation Judge on July 8, 1954. so that a request for extension of time could be made. No Division Bench, however, was sitting on that date, and the appellant filed an application on July 8, 1954, requesting that he be allowed to pay Rs. 1,400 immediately, and the balance, within a month thereafter. This application was placed before a Division Bench consisting of Ramaswami and Ahmad, JJ., when the following order was passed:

"This application for extension of time must be dismissed. By virtue of the order of the Bench dated the 30th March, 1954, the appeal has already stood dismissed as the amount was not paid within the time given. The appellant then moved an application under S. 151, which was rejected by Imam, C. J. and Narayan, J., on September 2, 1954* They, however, felt that the proper remedy was review. The appellant then filed another petition under S. 151, read with O. 47, R. 1 of the Code of Civil Procedure, setting out the reasons why he was unable to find the money. He stated that he was seriously ill, and though he had attempted to raise a loan, he was unable to get sufficient money, as the grain market had slumped suddenly, and people were unable to advance money. He offered to pay the deficit court-fee within such further time as the High Court might fix.

* See 1954 B LJR 600

3. This application for review was heard on September 27, 1955, * by Ramaswami and Sinha, JJ. They first considered it from the viewpoint of Order 47, Rule 1 of the Code of Civil Procedure, and held that the application did not fall within the Order. The argument of counsel that time could have been ext