Order 7, Rule 11(c) of the Civil Procedure Code is not applicable to the memoranda of appeals.

S.S.SANDHAWALIA, J.

1. Whether sub-rule (c) of Rule 11 of Order 7 of the Code of Civil Procedure 1908 applies mutatis mutandis to the memoranda of appeals by virtue of the provisions of sub-section (2) of Section 107 of the Code, is the meaningful question which in essence has necessitated this reference to a Full Bench.

2. It is manifest that the issue aforesaid is pristinely legal and any detailed reference to the facts, therefore, would be hardly relevant the more so in view of the fact that we are inclined only to decide the question of law leaving the determination on merits to the learned single Judge. If, therefore, suffices to notice that the suit preferred by the plaintiff-appellants was a usual declaratory one claiming that the sale of agricultural land specified therein by a registered deed was without necessity and consideration and therefore, not binding upon the plaintiffs and consequently not affecting their proprietary rights. The trial Court dismissed the suit on January 28, 1978. The appeal against the same was instituted on April 18, 1978, and relying on certain amendments made by the State of Haryana in the Court-fees Act the respondents took up the objection before the appellate Court that the memorandum of appeal should have been stamped with Rs. 30/- whereas in fact only a court-fee of Rs. 25/- had been affixed. This position being not in any serious dispute the plaintiff-appellants prayed for being allowed to make up the deficiency in the court-fee but were opposed with the objection that the limitation for filing the appeal having expired they could not now be allowed to do so, Reliance on behalf of the respondents was placed on Smt. Amar Kaur V/s. Iqbal Singh 1971 Pun LJ 49 : (AIR 1971 Punj 461) and Jabar Singh V/s. Shadi, (1978) 80 Pun LR 681.

3. The appellate Court held on facts that no ground for the exercise of discretion under Section 149 of the Civil Procedure Code to allow the appellants to make up the deficiency in the court-fee had been made out However, a further finding was arrived at (which now lies at the root of the controversy) that O.7, Rule 11(c) of the Civil Procedure code had no application to appeals and, there fore, the appellate Court was not bound to call upon the plaintiff-appellants to make up the deficiency in the court-fee and could straightway reject an appeal if the memorandum thereof did not bear the court-fee prescribed by law. It is this view on which there appears to be a wide ranging divergence of judicial opinion and, therefore, it calls for careful consideration.

4. However, before adverting to the core of the aforesaid issue it is perhaps apt to dispose of a matter on which there appears to be virtual unanimity. Learned counsel for the parties were agreed that Section 149 of the Code was undoubtedly attracted to the situation and the appellate Court, therefore, had the discretion at any stage to allow the appellants to make up the deficiency. If this discretion were to be exercised in favour of the appellants, the inevitable effect would be that the court-fee on the memorandum of appeal would be deemed to have been paid as if in the first instance in view of the provisions of Section 149. So far there indeed appears to be no dispute and the counsel were agreed that it would be for the learned single Judge to determine whether the first appellate Court had in fact exercised the discretion under Section 149 correctly and if not he may himself do so in favour of the plaintiff-appellants. On this aspect under Section 149 of the Code, therefore, nothing more need be said because neither on principle nor on precedent there is now any conflict meriting determination and the matter is now fully covered by the Division Bench judgment of this Court in Gurdial Singh V/s. Massa Singh (1977) 79 Pun LR 130. Therein it was held in the reference order (the reasoning whereof was adopted by the Division Bench) as follows :-

"In the ultimate analysis, therefore, it mu