( 1 ) THIS execution second appeal is directed against the order of the learned Additional District Judge dated 3-10-1862 holding the any (Misc. Civil Appeal No, 113 of 1951 presented in his Court against the order of the learned Senior Subordinate Judge dated 3-6-1957 to be barred by limitation because the order appealed against did not bear the proper Court tee.

( 2 ) THE circumstances in which the appeal was dismissed as barred by time by the learned Additional District Judge are that from the order of the learned Senior Subordinate judge dated 3-6-1957, a revision was presented in this Court on 18-10-1957. This was referred to a Full Bench by a learned Single Judge of the Punjab High Court in April, 1961 and the Full Bench on 8-12-1961 held that no revision was competent in this Court because the impugned order was appealable. In this Court, the revision had not been converted into an appeal by the learned Single Judge because, I am informed, the learned Single Judge felt that the appeal would have to be presented in the lower Appellate Court. It was in these circumstances that the appeal was presented in the lower Appellate Court on 11-12-1961. I am informed that 8th of December, 1961 was a Friday and 10th ot December was a Sunday. About 9th of December, there is some controversy as the appellant s counsel states that it was second Saturday and, therefore a close day, whereas the respondent s counsel has submitted that it was not a close day because in those days second Saturdays were not declared as holidays

( 3 ) IN the lower Appellate Court, as its order shows, the order appealed against bore Court-fee stamp of Rs. 1. 25np. whereas it required a Court-fee stamp of Rs. 2. 65 np. It was submitted in the Court below on behalf of the counsel tor the appellant in that Court that the suit which had given rise to the execution proceedings had been filed in 1947 when only a Court-fee of Re. 1 was required to be affixed on the copy of the decree or order having the force of a decree and since execution proceedings were a continuation of the suit. the same Court- fee was payable. This plea was not accepted and the order appealed from was held to require a Court-fee of Rs. 2. 65 np. Failure on the part of the appellant in the lower Appellate Court to affix proper Court-tee stamp on the copy of the order appealed against was considered to he clue to the negligence of the counsel s clerk and a valuable right having accrued in favour of the successful party in the executing Court, the appeal was dismissed as noticed earlier.

( 4 ) THE appellant in the Court below had also made an application under Section 149. Code ot Civil Procedure, praying tor permission to make good the deficiency in Court-fee, but curiously enough the learned Additional District Judge felt that in the absence of a prayer for extending the period of limitation, he could not permit the deficiency to be made good. He also observed that there was no affidavit indicating the circumstances under which the proper Conrt-fee had not been filed originally, but he forgot that before him a legal ground had been sought to be made out that the appellant had felt that under the law the same Court-fee was leviable as was permissible in 1947.

( 5 ) IT may also be pointed out at this stage that according to the order ot the learned Additional District Judge, an application was actually presented in his Court by the appellant on 4-10-1962 with which was attached a Court-fee label ot Rs. 1. 40 np. , the amount of deficiency in the requisite amount, but this was apparently considered to be unfair to the respondent in that Court.

( 6 ) IN my opinion, the view taken by the learned Additional District Judge is difficult to sustain. As observed by a Full Bench of the Lahore High Court in Jagat Ram v. Misar Kharaiti Ram, AIR 1938 Lah 361 (FB), the discretion conferred on the Court by Section 149 is normally expected to be exercised in favour of the litigant except in cases of contumacy o

Click Here to Read the rest of this document