Somayya, J.

1. This second appeal arises out of a suit for partition filed by the appellant claiming a third share in the family properties. The suit was at first filed against two defendants, first defendant being the father and the second defendant being the brother of the plaintiff. The third defendant was later on added on the ground that that he was an alienee of item 6 of the plaint properties from the father, the first defendant. The Subordinate Judge then raised an additional issue whether the plaintiff can claim any relief in respect of item 6 of A schedule without having the sale set aside and whether the court-fee paid is correct. He held that the sale ought to be set aside and that court-fee should be paid on the value of item 6. This item was valued in the plaint at Rs. 1,012 and therefore the Subordinate Judge called upon the plaintiff to pay an additional court-fee of Rs. 119-15-0. Time was given till the 23rd December, 1943, for payment. Plaintiff took time for payment till the 30th December. The Subordinate Judge did not attend Court on that day and the case was posted to the 10th January, 1944. On that day instead of paying the deficit court-fee, the plaint