JUDGMENT

1. This is an appeal on behalf of the judgment-debtoragainst an order made in the course of proceedings for assessment of mesneprofits as directed by the decree in the suit. Upon the application of thedecree-holders, the mesne profits were assessed; it was then found that theCourt-fees paid on the plaint were insufficient. They were, therefore, directedunder section 11 of the Court-Fees Act to pay the additional fees within a weekfrom the 6th April 1910. The Court-fees, however, were not paid till the 14thMay, 1910, when the decree-holders prayed that the time fixed for payment mightbe enlarged. This application was granted, and the fees accepted. Thereupon thejudgment-debtor objected that the Court had no jurisdiction to extend the timeand that it was obligatory upon the Court to dismiss the application for mesneprofits under section 11 of the Court-Fees Act. This objection was overruled.The judgment-debtor thereupon appealed to the District Judge. He has held thatthe order in question was not open to appeal and that at any rate there was nosubstance in the objection of the judgment-debtor.

2. The judgment-debtor has now appealed to this Court, andon his behalf it has been contended that section 148 of the Code of 1908 has noapplication to this case, as the order for payment of additional Court-fees wasmade under section 11 of the Court Fees Act. It has further been urged upon theauthority of the decision of this Court in the case of Kewal Kishan Singh v.Sookhari : 24 C. 173 : 1 C.W.N. 243, that it was notcompetent to the Court to make any order other than one of dismissal of theapplication. In our opinion, there is no force in these contentions. In thefirst place, the case upon which reliance has been placed is clearlydistinguishable. There an application had been made for assessment of mesneprofits. The mesne profits were assessed and the decree-holder was called uponto pay the additional Court-fees within a time prescribed. He failed to carryout the order of the Court, and the application was dismissed. He subsequentlymade another application for assessment of mesne profits. It was ruled, underthose circumstances, that the second application could not be maintained andthat the proper course for the decree-holder to pursue was to take appropriatesteps for revival of the previous application. It is worthy of note that thesubsequent decision of this Court in the case of Ram Kishore Ghose v. Gopi KantShaha, 28 C. 242., shows that even this doctrine is of a limited application.In any event, this principle can have no possible application to the facts of thepresent case, because here the application has not been dismissed; the Courthas, on the other hand, extended the time and accepted the Court-fees tendered.But it has been argued that section 148 of the Code of 1908 has no application,because that section applies only to acts prescribed or allowed by the Code. Itis not necessary, however, to decide whether section 148 has any directapplication here, though the view may possibly be maintained that evenindependently of section 11 of the Court-Fees Act, the Court might haveproceeded under section 149 of the Code of 1908 in which event section 148would have been applicable. But even if it be conceded that section 148 has noapplication, we think that it is not a reasonable construction of section 11 ofthe Court-Fees Act, to hold that the Court has no power to enlarge the timeoriginally fixed for the payment of Court fees. A similar question was raisedwith reference to the provisions of section 549 of the Code of 1882 whichauthorizes the Appellate Court to require security for costs from theappellant. That section provides that if the security demanded, be notfurnished within such time as the Court orders, the Court shall reject theappeal. Upon a construction of this provision, it was argued in two cases thatonce the time granted by the Court had expired, it was not competent to theCourt to enlarge the time. But this view was negatived by their Lordships ofthe Judicial Committee. Rajab Ali v. Amir Rossain 17 C. 1. and Badri Narain v.Sheo Koer 17 C. 512:17 I. A. 1. In the latter case Sir Richard Couch observedthat the words "if such security be not furnished within such time as theCourt orders, the Court shall reject the appeal" appeared to be consistentwith the Court having power to make fresh orders with regard to the time withinwhich the security should be furnished and not to fetter in the way that wascontended for by the learned Counsel, that having once made an order and fixeda time they could make no alteration in it, no matter what circumstances mightoccur which would render it impossible for that order to be complied with, thatwould not be a reasonable construction of that Act; the other construction wasa reasonable one, that the application to the Court to enlarge the time for givingsecurity might be made either before or after the expiration of the time withinwhich the security had been ordered to be furnished, and the Court mightthereupon enlarge the time according to any necessity which might arise, whereit was proper that they should do so. This principle of construction is, in ouropinion, clearly applicable to the provisions of section 11 of the Court-FeesAct. The course pursued by the Court of first instance was, therefore, right inthe circumstances of this case, and no reason has been shown why we shouldinterfere with the exercise of discretion by that Court. The appeal is,therefore, dismissed.

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Golab Chand vs.Bahuria Ram Murat Koer (24.02.1911 -CALHC)