The court established that the general provision of Section 149 of the Civil Procedure Code prevails over the rule under the first schedule, allowing the court wide discretion in allowing payment at any stage or disallowing it.

Wallace, J.

1. This Civil Revision Petition is against the decision of the Additional District Munsif, Guntur, declining to grant a review of an order by his predecessor excusing delay in re-presentation of a plaint. The facts were as follows: A plaint was presented on 20th April, 1923, with a one rupee stamp, the proper stamp being Rs. 142. It was returned on 4th June, 1923, for two reasons, (1) to pay deficient Court-fee, and (2) to compare the copy of accounts. Seven days time was given. On 16th June, 1923, a further extension of time of 10 days was given. The plaint was not re-presented until 4th March, 1924. On that date a petition was put in by the plaintiff under Section 151, Civil Procedure Code, with an affidavit by the pleaders clerk stating that the plaint had been mislaid and asking that the delay in re-presentation be excused. The deficient Court-fee was put in and paid on the same day. On 5th March, 1924, the District Munsif, without giving notice to the other side made an order on that petition "excused". On 20th August, 1925, the present District Munsif was asked under Order 47, Rule 1, Civil Procedure Code, by the defendant to review that order and he has declined to do so, and the defendant comes up with this petition.

2. The first point urged is that there was really no definite order by the first District Munsif indicating that he gave his mind to the long delay in paying up the deficient Court-fee, and therefore it was open to his successor to consider that matter de novo. Certainly the affidavit filed in support of the application for excusing delay does not make any mention of the payment of the Court-fee and was not put in under Section 149, Civil Procedure Code, but under Section 151, Civil Procedure Code. Nevertheless I think it must be held that the matter was brought to the notice of the District Munsif and that he exercised his mind consciously thereon and decided to excuse the delay in paying up the deficient Court-fee. That was the chief question in the matter of excusing the delay in representation and I must take it that the District Munsif applied his mind to it.

3. That being so, it was open to his successor to treat that order as one open to review by him if proper and legal grounds for review were made out. The Lower Court, however, seems to regard the matter as one which it had no power to review. That view seems to be wrong. But since the matter was within the discretion of the first District Munsif, and since it has not been brought to my notice that any new facts have appeared since that order was passed, there is no ground for interference with the Lower Courts refusal to review unless the first District Munsif had no jurisdiction whatever to excuse delay. Even so, the more proper course would have been for the petitioner to have come up here at once against the order excusing delay. Had he done so, he would have been able to urge with more propriety that the District Munsif should have given notice to him and heard him before he passed his order excusing delay. That he did not do, and the order was passed on 5th

4. March, 1924. He did not come up here against it, and even his petition for review was belated, having been put in on 20th August, 1925. In such circumstances I would not interfere unless it is an absolute rule of law that such condonation of delay is illegal.

5. This is the second point urged before me, namely, that the District Munsif had no option but to dismiss the plaint since the deficient Court-fee was not paid within the time allowed. Order 7, Rule 11, Civil Procedure Code, is called in aid, and variousulings have been cited before me.

6. Order 7, Rule 11 declares that when a plaintiff does not pay the deficient Court-fee within a time to be fixed by the Court the plaint shall be rejected. That the Court must fix a time within which the deficient Court-fee shall be paid and has no discretion to refuse to fix it, is settled law. The Court also has discretion to exte