The rejection of the memorandum of appeal did not preclude the appellant from presenting a fresh memorandum on proper court-fee, and the court emphasized the necessity of avoiding irregularities in court procedures.

JUDGMENT

Suhrawardy, J. - This matter arises under the following circumstances: In a mortgage suit, after the preliminary and final decrees, a personal decree was passed against the opposite party on 13th June 1930. On 31st July 1930, an application for amendment was made by him, which was rejected on 28th August 1930. The High Court was unsuccessfully moved against that order on 5th December 1930. Then on 23rd December 1930, an appeal was filed before the District Judge against the personal decree passed on 13th June 1930, on a court-fee of Re. 1 only out of Rs. 135 payable on the memorandum. Time was granted by the District Judge to file the deficit court-foe till 6th January 1931. The deficit court-fee not having been put in, on 7th January 1931, the following order was passed:

The deficit court-fee stamp has not been put in. The memorandum of appeal is rejected.

2. On 8th January, the opposite party again prayed for seven days' time to file the deficit court-fee stamp, and the prayer was granted. The stamp was supplied on 10th January and, on 17th January 1931, the next order was passed by the Judge in these words:

Register. Let notices issue to the respondents and fix 24th February 1931, next for hearing. Costs and notices to be put in within seven days.

3. On 24th February 1931, the order passed runs thus:

Notices served. Services proved. Respondent 1 enters appearance and files an objection stating that the appeal is time-barred. Let this objection be put up in presence of the pleaders on 12th March 1931. Inform pleaders.

4. On 12th March 1931, the order passed was:

Pleaders heard for the respondent. The explanation of the appellant for delay is reasonable and there is no reason why time should not be extended. The objection is rejected with costs. Pleadur's fee Rs. 16.

5. Against this order the present rule has been obtained by the respondent in the Court below and the ground which has been pressed by the petitioner is that the orders of the learned District Judge after he had finally rejected the memorandum of appeal on 7th January 1931, were all passed without jurisdiction and in support of this contention it is argued that the order of 7th January 1931, had the same effect as an order passed by an original Court, under Order 7, Rule 11, Civil P.C. Under that rule, a trial Court shall reject a plaint whore the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within the time to be fixed by the Court, fails to do so. Such an order is a decree as defined in Section 2 of the Code, and it is submitted that by virtue of the provisions of Section 107 (2), the order passed by the Judge on 7th January 1931, should also have the force of a decree and that the order can only be set aside by appeal or review and that the Judge had no jurisdiction to ignore it and to receive subsequently the memorandum of appeal. I find it difficult to accede to this view of the law for in the first place it is not a case where the relief claimed was under-valued and the plaintiff was asked to put in the court-foe upon proper valuation, but it is a case where the appellant deliberately put in insufficient court-fee upon the memorandum of. appeal which was valued properly. In the second place Section 107 (2) invests an appellate Court with the same powers as are conferred on a Court of original jurisdiction. It does not purport to give the order passed by an appellate Court the same effect as an order passed by an original Court of a like nature. Section 2 expressly Rays that ' decree " shall be deemed to include the rejection of a plaint. If it was the intention of the legislature to include within the definition of "decree" an order rejecting a memorandum of appeal, it would have expressly said so.

6. But it is not necessary to go into this matter further, because, in view of the provisions of Section 107 (2), an appellate Court is invested with all the powers of an original Court and has accordingly