P.K. Balasubramanyan, J.

This is an application by the appellant in the appeal invoking S.151 read with Ss.148 and 149 of the Code of Civil Procedure. The prayer in this petition is for restoration of the appeal dismissed for default for non-payment of the balance court fee payable under the second proviso to S.52 of the Kerala Court Fees and Suits Valuation Act and to allow the petitioner to remit the balance court fee by enlarging the time therefor. This application is opposed by the respondent on the ground that it is not maintainable and on the further ground that no ground is made out on merits for allowing the prayer.

2, This Court admitted this appeal on 7.12.1999 after preliminary hearing in terms of O. XLI R.11 of the Code of Civil Procedure. Under S.52 of the Kerala Court Fees and Suits Valuation Act, hereinafter referred to as the Court Fees Act, the full court fee payable on an appeal need not be paid while instituting the appeal or presenting the appeal. Only one third of the fee payable need be paid. It may be better to quote-the relevant proviso to S.52 of the Court Fees Act:

"Provided further that one third of the fee payable in an appeal shall be paid at the stage of admission of First Appeal or Second Appeal as the case may be and the balance shall be paid within such period not later than fifteen days from the date of such admission as may be specified by the court; in case the appeal is admitted:

Provided also that the court may for sufficient reasons to be recorded in writing extend the period upto thirty days".

The appellant had paid only one third of the court fee due on the Memorandum of Appeal. The appeal having been admitted on 7.12.1999, the appellant had the obligation to pay the balance two thirds of the court fee within fifteen days from 7.12.1999. The appellant did not pay the balance court fee within time. The appeal was sent up for orders on 2.2.2000 in view of this. The Court adjourned the proceeding to 15.2.2000 so as to enable the appellant to pay the balance court fee. From 15,2.2000, the appeal was again adjourned to 28.2.2000 by way of further indulgence. It may be noted that by 7.1.2000 even the period of thirty days to which the power of the court to extend the time was limited by the proviso to S.52 of the Court Fees Act had also expired. Notwithstanding this, the adjournments were given in the light of the view expressed by this Court that in exercise of jurisdiction under S.149 of the Code of Civil Procedure, the court can extend the time (See Elizebath v. Francis, 1991 (2) KLT 779). On 28.2.2000, since the balance two thirds court fee had not been paid, the appeal was rejected by this Court. The judgment of this Court reads:

"Even though this appeal was admitted on 7.12.1999, the appellant has not paid the balance two third court fee due from him in terms of S.52 of the Kerala Court Fees and Suits Valuation Act. Under such circumstances, we are constrained to reject this appeal for non-payment of court fee. The appeal is rejected."

The present petition was filed by the appellant on 7.3.2000 with a prayer already referred to. Learned counsel for the respondent submitted that an application under S.151 of the Code of Civil Procedure read with Ss.148 and 149 of the Code is not maintainable and is not sufficient to enable the appellant to have the judgment already rendered, set aside. According to counsel, the appellant is bound either to appeal against the said judgment or to seek a review of that judgment dated 28.2.2000 since the rejection of a Memorandum of Appeal for non-payment of court fee is a decree and the decree cannot be got rid of by a mere subsequent extension of time for payment of court fee. The petition for extension, according to counsel, was not maintainable. This is met by counsel for the appellant by submitting that the dismissal of an appeal or rejection of an appeal for non-payment of the balance court fee due under the proviso to S.52 of the Court Fees Act,