1. The true question is as to whether the appeal is out of time. The appellant under Order 44 presented an application for leave to prosecute his appeal in forma pauperis accompanied by a memorandum of appeal as required by the order. The application for leave was two months out of time and was filed on the last day allowed for filing the appeal. Eight days later the court returned the application and the memorandum on the ground that the application was out of time and gave two days time to explain the delay. Two days later the appellant again presented the memorandum of appeal with the full Court fee and applied under Section 149 that the delay should be excused. In the case of plaints insufficiently stamped Order 7, Rule 11 (Section 54 of the old Code). the Court is bound to give a few days to pay the correct fee. Delay could be excused if the insufficiency was caused by a mistake as to the amount of the requisite stamps. But under Section 149 it is now left to the discretion of the Court.

2. In Balkaran Bai v. Gobind Nath Tiwari (1890) I.L.R. 12 A. 129 at 151 the opinion was expressed that these provisions of Section 54 as regards a plaint were not made applicable to a m