The inherent powers of the court under Section 151 of the CPC can be exercised to set aside an order of dismissal where a plaint has been rejected for non-payment of court-fee, even though such an order is appealable.

P. C. MISRA, J.

( 1 ) THIS case has come before this Bench on being referred for resolving a conflict in some decisions of the learned single Judges of this Court with regard to the question whether after the order rejecting a plaint under Order 7, Rule 11 of the C. P. C. (hereinafter referred to as the `code'), which is appealable, an application under Section 151 of the Code for setting aside or recalling the order would be entertainable by the trial Court. The petitioner filed M. S. No. 54/ 83 in the Court of Subordinate Judge, Berhampur which was rejected under Order 7, Rule 11, C. P. C. for non-payment of deficit court-fee. The plaintiff filed an application under Section 151, C. P. C. praying for setting aside the order of dismissal and for restoration of the suit in M. J. C. No. 203/83 which was rejected as not maintainable. The plaintiff-petitioner has filed this revision contending inter alia that the learned trial court has failed to exercise jurisdiction vested in it by law by refusing to entertain the application under Section 151 of the Code, as according to him, there is no other remedy available to meet such a contingency. Whether the court in exercise of its inherent jurisdiction under Section 151 of the Code can set aside an order of dismissal where a plaint has been rejected for non-payment of court-fee was the subject-matter of decision in different cases in this Court. It appears that divergent views have been expressed by the learned single Judges of this Court for which it has become necessary to determine the correct position of law.

( 2 ) ORDER 7, Rule 11 of the Code provides that the plaint shall be rejected in four classes of cases mentioned in Cls. (a) to (d) thereof, one of those clauses being where the plaint is insufficiently stamped. Sub-section (2) of Section 2 of the Code defines a "decree" which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It further provides that rejection of a plaint shall be deemed to be a decree within the meaning of the definition. The learned trial court having noticed the above provision of law rejected the application under Section 151, C. P. C. on the ground that the rejection of plaint for want of proper court-fee being a decree within the meaning of the Code is appealable and, therefore, the inherent powers of the court which is available to be exercised in the absence of statutory remedy can have no application to set aside such a decree. There is no dispute that the rejection of the plaint amounts to a decree which is appealable. The question for determination is whether the court will still have jurisdiction to set aside such a decree in exercise of its inherent powers under Section 151, C. P. C.

( 3 ) THE earliest decision of this Court dealing with the aforesaid question of law is the case of Bahadur Pradhani v. Gopal Patel, AIR 1964 Orissa 134. In that case the plaint in a Money Suit was rejected for non-payment of deficit court fee within the time granted by the court. The plaintiff filed a petition under Section 151, C. P. C. for restoration of the suit in the ends of justice. The court allowed the petition and the suit was restored to file. Against the said order a revision was carried up to this court. This Court examined the scope of the inherent powers of the Court saved by Section 151 of the Code and expressed that the provisions of the Code do not control the inherent powers of the court by limiting it or otherwise affecting it. It is a power inherent in the court by virtue of its duties to do justice between the parties before it. It was further explained relying on a decision reported in AIR 1962 SC 527 (Manoharlal v. Seth Hiralal that the provisions of the Code are not exhaustive as the legislature is incapable of contemplating all possible circumstances which may arise in futur