The rejection of a Memorandum of Appeal on account of non-payment of deficit court fee tantamounts to a decree and can only be set aside through the procedures contemplated by the Code.

1. Appellant in A.S. No. 47/ 76 on the file of Subordinate Judge's Court, Mavelikara is the petitioner in this Civil Revision Petition. On account of non-payment of the deficit court fee on the Memorandum of Appeal, the appeal was dismissed on 17-10-1980. On 24-10-1980 appellant filed I. A. No. 1557/80 praying for restoration of appeal to file. The said application was purported to be one filed under S.151 of the Code of Civil Procedure. The learned Subordinate Judge dismissed that application by his order dated 3-1-1981 holding that such a restoration application will not lie. The correctness of that order is in challenge.

2. S.107(2) of the Code of Civil Procedure reads as follows:

"(2) Subject as aforesaid, the appellate Court shall have the same powers (and shall perform as nearly as may be the same duties as are conferred and imposed by this code on Courts of original jurisdiction in respect of suits instituted therein."

This provision gives no room to doubt the jurisdiction of the Appellate Court. The jurisdiction of the Original Court has to be exercised by the Court of Appeal as nearly as may be applicable in a given situation. Order VII R.11 of the Code provides that the plaint shall be rejected in case the plaintiff fails to supply the requisite stamp paper if it is found that the plaint is written upon insufficiently stamped papers. The same step must be restored to by the Appellate Court when the appellant fails to supply the deficit stamp paper when called upon to do so. In other words, when the appellant fails to furnish the deficit court fee stamp when called upon to do so the appellate court should reject the Memorandum of Appeal. Such rejection of the Memorandum of Appeal will have to be treated as having the same effect as the rejection of a plaint under Order VII R.11 of the Code. S.2(2) of the Code defines decree to include the rejection of a plaint. Hence the rejection of a Memorandum of Appeal on account of non-payment of deficit court fee will also be a decree. In this view, a person aggrieved of that decree can have it set aside only by resort to the procedures contemplated by the Code. When specific provisions for the said purpose are contained in the Code, a petition under S 151 of the Code cannot be a proper course to be resorted to.

3. The learned counsel appearing for the revision petitioner brought to my notice certain decisions in support of his contention that in situations similar to the one before me, the proper remedy for the aggrieved appellant can only be a petition under S.151 of the Code. The first decision relied on by the learned counsel is Ningappa v. Chandra (A I.R. 1942 Bombay 198). In that case the appellant did not deposit the costs for preparation of paper book.' On that ground the appeal was dismissed. The appellant then filed application to restore the appeal. The Appellate Court took the view that such an application would not fall under 0.41 R.19. It further held that the appellant was not entitled to invoke the help of the inherent jurisdiction under S.151. Dealing with this matter the High Court took the view that 0.41 R.19 does not exhaust the powers of the Court in proper case to readmit an appeal dismissed for default and it is open to the Court to exercise its inherent powers, to deal with these matters, under S.151 C.P.C. The next decision is Mrs. Minnie Lal v. Mahadeo Lall (A.I.R.1949 Patna 112). There, on account of the appellant's failure to comply with a peremptory order to pay the printing costs of the appeal, the appeal was dismissed for default. A petition under 0.41 R.19 of the Code was filed for restoring the appeal to file. The Court held that such an application will not come within the provisions of 0.41 R.19 and it can be entertained only under S.151 of the Code. Lastly decision in Biswanath v. Amar Nath (A.I.R.1962 Calcutta 110) was relied on. There also the appeal was dismissed for non-payment of the costs of the paper book. When that appeal was s