Section 151, C. P. C. can be invoked to restore an appeal dismissed for non-payment of deficit court-fees, even if the conditions for review under Order 47, Rule 1, C. P. C. are not fulfilled.

G. K. MISRA, J.

( 1 ) DEFENDANT-1 is the petitioner. Money Smt No. 107 of 1957 was decreed for Rs. 2917. 40 np. against the petitioner on 3-10-1961. On 8-12-1961 M. A. No. 79 of 1961 was filed before the District Judge and on the same day the syapeltent filed an application for time to pay the deficit court-fees. This was allowed till 21-121961. Again the appellant applied for time which was granted tin 3-1-1962. On this date the application for time to pay the deficit court-foes was rejected and the appeal was dis-missed. On 31-1-1962 an application was filed to set aside the order of dismissal and to accept the court-fees. Misc. case No. 11 of 1962 was registered under Order 41, Rule 19, C. P. C. On 7-2-1962, the appellant filed process fee but no requisites for postal service. On 27-2-1962 postal requisites were filed and the Court ordered issue of notice on the opposite parties fixing 4-41962 for retain. Despite this order, and the fact that the requisites had been filed, processes were not actually issued. This is a matter of mystery and it is somewhat astonishing that there is nothing to the judgment of the learned District Judge to indicate as to how the office did not issue the notice though the Court had so ordered. On 4-4-1962 as no notice had been issued, the opposite parties did not appear. Mr. S. C. Sahu, the learned Advocate for the petitioner, filed a memo on 5-4-1962 (though obviously a mistake for 4-4-1962) stating that the notices on the opposite parties need not be issued as they had not appeared in the appeal from which the, present Misc. case arose. The learned District Judge (Mr. U. N. Misra) took notice of this memorandum, passed no orders thereon and asked the petitioner to file an affidavit showing cause for non-appearance. The same learned Judge passed an order on 9-5-1962 to the following effect : "petition is allowed. In the circumstance the appeal be restored. To 12 5-62 for payment of Court-fee" on 28-6-1962 the petitioner paid the court-fees. On 10-9-1962, the opposite parties appeared and raised a preliminary objection on the quesdon of limitation. The learned District Judge (Mr. K. P. Panda) heard the matter, set aside the order of restoration passed by his predecessor (Mr. U. N. Misra) and rejected the memorandum of appeal on 13-9-1962. It is against this order the Civil revision has been filed.

( 2 ) MR. Dasgupta relying upon a series of Patna decisions reported in Suraj Pal pandey v. Uttim Pandey, AIR 1922 Pat 281, Radhanath Jha v. Bachalal Jha, AIR 1955 Pat 370 (FB) and Mahaath Ram Das Chela v. Ganga Das, AIR 1956 Pat 20, contends that the orders dated 3-1-1962 and 13-9-1962 amount to decrees against which an appeal lies and the revision in the High Court is incompetent against the last order. This question is concluded by a decision of this High Court reported in ILR (1962) Cut 818 Achyuta v. Sibram in which I held that the rejection of memorandum of appeal or the dismissal of an appeal under Order 41, rule 3, or Order 7, Rule 11, read with Section 107 (2) is not a dismissal of the appeal under Order 41, Rule 11 C. P. C. and is not a determination of the rights of the parties with regard to all or any of the matters in controversy. Such orders are not decrees and a revision against such an order to. the High Court is maintainable. The reasons are given in extenso in that decision and it is unnecessary to cover the same field once again. In this view of the matter, the revision is maintainable.

( 3 ) IT is conceded on either side that to a case of restoration of appeal dismissed for nonpayment of deficit court-fees, Order 41, Rule 19, C. P. C. has no application. No other specific provision of the Code has been brought to my notice on either side whereunder the appeals in such circumstances should be restored. The order dismissing the appeal can certainly be reviewed under Order 47, Rule 1, provided the conditions laid down therein are fulfilled. Occasion arises when requisite conditions