( 1 ) THIS is a defendants application in revision against an order of the Munsif Haveli Banaras, allowing futher time to the plaintiff opposite party to pay a certain deficiency in court-fee in a partition suit relating to the joint family property of the parties.

( 2 ) ON 5th July 1947, the Court passed a preliminary decree in the plaintiffs favour, the terms of which are not material for the purposes of this case. The operative portion of the judgment towards the end was this :

"that the plaintiffs suit for partition of and for recovery of exclusive possession over 1/5th share of the properties detailed and described in schedules A and B appended at the foot of the plaint is decreed against the defendants. The plaintiff shall get his costs of the suit from defendants 2 and 4, The plaintiff shall pay up the deficiency in court-fees within a fortnight. The shares of defendants 1 and 3 in the properties in the suit detailed and described at the foot of the plaint, the extent of each comes to 1/5th, shall be apportioned and their separate lots shall be prepared, if they pay the requisite amounts of court-fees within a fortnight. Defendants 2 and 4 shall bear their own costs of the suit. Let a commission be issued to the Court Anna for preparing lots. The amin must submit his report by 15th August 1947.

( 3 ) THE English notes of the learned Munsif of the same date record that

"the plaintiff must value his suit for the purposes of payment of court-fee at Rs. 2,620-12-9 3/5. The plaintiff must pay up the deficiency in court-fee within a fortnight. "

( 4 ) I have quoted the earlier part of the last passage only to indicate that, besides paying the deficiency in court-fee, the plaintiff was also required to do a specific act with regard to the frame of his plaint, a point which would be material to the question mainly arising in this case, namely, whether the Court had still retained control over the case after passing the order first quoted. I shall discuss this mate in detail later.

( 5 ) THE time given in the decree for payment of the deficit court-fee having expired on 19th July, the defendants applied on 22nd July 1947 that the plaintiff having failed to pay the amount "the suit should be dismissed with costs". The words underlined (here italicised,) would, again, have relevance on the point I have just indicated, and to these also I shall have to advert later.

( 6 ) ON 30th July 1947, the plaintiff applied for extension of time to pay the court-fee p to 4th august 1917. On 2nd August, the Court fixed 5th August 1947, for the hearing of this application, and on the latter date it ordered that the matter be "put up to-morrow". The same day, the plaintiff made another application for extension up to 13th August 1947, but on the day following, 6th August, 1947, the learned Munsif passed an order that the plain. tiff might pay the amount "within four days". This order also would be relevant to the question whether the Court had intended to retain its control over the case even after 5th July 1947, the date of the preliminary decree. The learned Munsif observed in the order that in his view there having been no default clause in the preliminary decree, namely no words that "in case of non-payment of the court-fee within the time fixed, the suit shall stand dismissed", it was still open to him to extend the time fixed in the decree for payment of the requisite court-fee. At the same time he found that the plaintiff had really had knowledge of the time fixed in the decree, and had even been I negligent in not depositing the court fee, his plea of illness being an after-thought. Nonetheless, he allowed the plaintiff, in the interest of justice, a few days more to pay the amount.

( 7 ) AN appeal was filed against this order of 6th August 1947, which was dismissed as incompetent on 21st January 1949. Then the present application in revision was filed on 1st february 1949.

( 8 ) THE main point raised by the applicants lear