Meredith, J.This is an appeal by the defendants from a decision of the learned District Judge of Purnea dated 2nd June 1939 confirming a decision of the Munsif of Araria dated 26th August 1938.

2. The suit having been decreed against the appellants, they filed an appeal before the learned District Judge. The last day of limitation for this appeal was 10th October 1938. At that time the Court was closed for the annual vacation, and the appeal was accordingly filed on the re-opening day, 26th October 1938. It was filed on a court-fee of only Re. 1, there being a deficit court-fee of Rs. 36-8-0. When this appeal was filed, the order of the District Judge was:

There is no prayer for time to file the deficit, court-fee. The memorandum of appeal filed with a nominal court-fee is rejected.

3. The defendants did not appeal against this order, and I do not think it is necessary for me to decide whether they could have appealed against it or could not. In Jnanadasundari Shaha Vs. Madhabchandra Mala, , it was held that an order rejecting a memorandum of appeal, written on paper insufficiently stamped, for non-payment of the deficit court-fee within the time allowed by the Court, is not a decree within the meaning of Section 2, Civil P.C. The rejection of a memorandum of appeal by the appellate Court would not, of its own force, preclude the appellant from presenting a fresh memorandum on proper court-fee. As against that, however, I find that there are cases of this Court where an appeal has been entertained and allowed on the ground that the insufficiently stamped memorandum had been rejected summarily without giving an opportunity to the appellant to explain or to make good the deficiency within a stated time.

4. Such cases are: Ramsawari Kuer v. Motiraj Kuer AIR 1939 Pat. 83, where it was held by Dhavle and Agarwala, JJ. that an order rejecting a memorandum of appeal on the ground that it was insufficiently stamped passed without giving appellant any time at all to make up the deficiency is a decree and is therefore appealable: similarly in Ramgati Singh v. Shitab Singh AIR 1939 Pat. 432 .

5. However that may be, what the appellants actually did was to file an application under Order 41, Rule 19, Civil P.C. The learned District Judge observed that Order 41, Rule 19 had no application to a case of this nature; and he suggested that the petitioners should file a fresh appeal. If limitation stood in their way, he said they might apply for condonation of the delay u/s 5, Limitation Act. This advice was probably given upon the not unreasonable assumption that if Order 7, Rule 11 applies to appeals so also must Order 7, Rule 13.

6. In pursuance of the advice of the learned District Judge, the appellants then filed a fresh memorandum of appeal, this time sufficiently stamped, and with it an application for extension of time u/s 5, Limitation Act. The learned District Judge rejected both the memorandum of appeal and the application. He observed that:

In the circumstances of the case I am unable to hold that it is a fit case in which Section 5, Limitation Act, should he applied. The application u/s 5, Limitation Act, is rejected. The appeal memorandum also stands rejected. In the circumstances of the case, however, there will be no order as to costs.

7. It is against the rejection of the second memorandum of appeal that the present appeal has been filed. It is well settled that the rejection of a memorandum of appeal as being out of time does amount to a decree and is appealable.

8. I have been referred to two rulings on this point: Rakhal Chandra Ghose v. Ashutosh Ghose 19 I.C. 931 and Adarpriya Choudhrani v. Ramprotap Agarwala AIR 1926 Cal. 1105 . As against this, Debi Charan Lal v. Mehdi Husain AIR 1916 Pat. 317 has been cited for the respondent; but it is noteworthy that though in that case their Lordships held that where the Court below has carefully exercised its discretion on an application u/s 5 and had held that no ground for extension existed, the High Court would not interfere in appeal, yet upon the case before them their Lordships proceeded to entertain the appeal and to allow it. That ruling therefore is also authority for the proposition that an appeal against such a rejection of the memorandum is maintainable and the order is a decree. It is clear that an appeal does lie.

9. With regard to the merits, the order of the learned District Judge cannot be sustained. In the first place, what the appellants did was in pursuance of the District Judges own advice. Secondly, the learned District Judge appears to have rejected the application upon a misapprehension as to the facts. He says:

The appellant filed his appeal on 26th October 1938, with deficit court-fee. The appeal memorandum was rejected on a subsequent date. Then there was a re-hearing application.

10. He seems to have thought that the provisions of Order 7, Rule 7 had been complied with and that time had been allowed to make up the deficiency. In fact, however, no time at all had been allowed, as I have shown, and the appellants had not been called upon to make up the deficiency before the rejection of the memorandum. Actually this in itself formed a sufficient ground for extending time u/s 5 because it is clear that the necessity for filing the second memorandum late arose out of the erroneous rejection of the first memorandum which had been filed within time.

11. It has been argued for the respondent on the authority in Ram Sahay Pande v. Lakshmi Narayan Singh AIR 1917 Pat. 26 that Order 7, Rule 11 applies only to plaints and not to memoranda of appeal, and that consequently the Court is not bound in the case of an appeal to allow time to make up the deficit. On that point there seems to be a conflict of opinions in the various High Courts, but with regard to this High Court, it seems clear that Ram Sahay Pande v. Lakshmi Narayan Singh AIR 1917 Pat. 26 has been explained, and it is now settled, so far as this Court is concerned, that Order 7, Rule 11 will apply in the case of a memorandum of appeal.

12. The direct authority on this point is to be found in Ramgati Singh v. Shitab Singh AIR 1939 Pat. 432 , Sarjug Prasad Sahu v. Surandrapat Tewari AIR 1939 Pat. 137 and Ramsawari Kuer v. Motiraj Kuer AIR 1939 Pat. 83.

13. In my view this was a clear case where the application u/s 5 should have been allowed and the second memorandum of appeal should have been accepted.

14. I therefore allow this appeal and direct that the memorandum of appeal be now accepted and registered and the appeal be heard upon the merits. Costs will abide the final result. Leave to appeal under the Letters Patent is allowed.