Law: Civil Procedure Code (V of 1908)

Section: O.XLIr.18

Civil Procedure Code (V of 1908), O. XLI r. 18-----Period within which process fees to be paid not fixed-Dismissal of appeal for failure to pay such fee-Illegal. Where the Appellate Court had not fixed the period within which the appellant should have paid the process fees, dismissal of appeal for failure to pay the fees was illegal. The policy of the law is that a suit or appeal should not be dismissed for failure to pay process fee unless a period for payment has been fixed by the Court. The usual words ba-akhaz talbana contained in the order directing deposit of process fees do not warrant the interpreta­tion that fees are to be paid within a reasonable time. Babu Lal v. Hari Bakhsh 13 P R 1918, Attar Singh v. Karam Chand A I R 1919 Lah. 203 rel. JUDGMENT KAIKAUS, J.-This revision petition arises but Of a suit for a declaration of ownership of land and for some consequen­tial relief, which had been filed by the respondents in the Court of the Civil Judge Mandi Baha-ud-Din. The suit was decreed and the petitioners before me filed an appeal before the Senior Civil Judge, Gujrat. The appeal was fixed for hearing on the 19th of July 1955, when it was found that the respondents had not been served due to the default of the petitioners in paying procees fee. The appeal was dismissed under Order XLI rule 18, Civil P. C., and this is an applica­tion in revision by the defendants. The ground urged before me is that Order XLI rule 18, Civil P. C., does not justify the dismissal of an appeal on the ground of non-payment of process fee unless and until a period for the payment of process fee has been fixed by an order of Court. Rule 18 of Order XLI runs :- "Where on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the cost of serving the notice, the Court may make an order that the appeal be dismissed Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on…

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