The court held that the respondents were entitled to notice before the time was granted for paying the deficit court-fee, and that the District Judge erred in reopening the prior order and dismissing the appeal as barred by limitation.

The plaintiff in Original Suit No. 18/1/1954 on the file of the Subordinate Judge's Court Karimnagar, is the appellant in this second appeal. The plaintiff sued for possession of the suit properties and for mesne profits. His suit was dismissed. Hence he filed an appeal in the District Court, Karimnagar. The Judgment and decree of the trial court were given on 7-2-1958.

The last date for filing the appeal was 20th of March 1958 after allowing time taken for obtaining certified copies of judgment and decree appealed against. The court-fee payable on the appeal memorandum was Rs. 277-7-0 O. S. The appeal memorandum was presented to the District Court, Karimnagar, on the 17th of March 1958 with only a court-fee of Rs. O. S. 100. An endorsement was made on the appeal memorandum as follows :-

"That the value of the appeal is the value of the suit in the lower court which is Rs. 3150 and a court-fee of only Rs. 277-7-0 is required, out of which Rs. 100 is paid and the remaining amount of Rs. 177-7-0 the appellant will pay within a month's time. The appellant prays for leave of the court to permit him to do so."

2. On 18-4-1958 the matter was posted before the court for order. Then it was noted :

"The pleader for the appellant was present. Court-fee was not completely paid and he requested for adjournment and the matter was adjourned to 11th July, 1958."

By that time the deficit court-fee was paid and the court ordered that the file be taken on Register No. 4. Notices were ordered to the respondents in the appeal. Respondents 1 and 2 appeared on 30th of October, 1958, 3rd respondent remained ex parte. The appeal was posted to 23-4-1959 for arguments and it was again adjourned for arguments on four occasions. In the meanwhile the advocate appearing for respondents 1 and 2 died and they engaged another advocate. He filed an application I. A. No. 38 of 1960 praying to dismiss the appeal on the ground of limitation as sufficient court-fee was not paid on the memorandum of appeal within the period of limitation. Notice was given to the appellant in I. A. No. 38 of 1960 which was posted to 23-3-1960 for counter. At the request of the appellant's advocate time was given for filing counter till 15-4-1960. But no counter at all was filed at any time in the I. A. by the appellant. The appeal and the application were posted for final hearing on 14-12-1960. The learned District Judge held that the respondents were entitled to question the earlier order of the court extending the time for payment of the deficit court-fee payable on the memorandum of appeal. Next, he considered the question whether the appellant had sufficient ground for praying for extension of time for paying the deficit court-fee. Then he noted that not even a counter was filed explaining the reasons for the delay in paying the deficit court-fee. Ultimately he expressed the view that the appellant did not have sufficient reason for not paying the full court-fee within the period of limitation. Therefore, he dismissed the appeal as barred by limitation. Hence this second appeal is filed by the plaintiff.

3. It is argued by Mr. Madhava Rao, the learned counsel for the appellant that the res- pondents were not entitled to notice before the time was granted for paying the deficit court-fee and that the learned District Judge has erred in reopening the prior order and dismissing the appeal as barred by limitation. But this argument is opposed to the decision of the Madras High Court in Venkataseshamma v. Ranganarayakamma, AIR 1950 Mad 769 where it was held by a Bench of the Madras High Court that-

"Where a Judge of the High Court sitting in the Admission Court, excuses the delay in payment of court-fee on the memorandum of appeal without notice to the other side it is open to the other side to file an application to the High Court to dismiss the appeal on the ground that the delay ought not to have been excused."

But Mr. Madhava Rao contends that this decision requires reconsid