JUDGMENT
1. The facts of this case are as follows: On the 20th November 1924 this Bench made an order in First Appeal No. 86 of 1924 that unless1 the printing costs were deposited within four days the appeal should stand dismissed without further reference to the Bench: The printing costs were not paid within the time prescribed and the appeal stood automatically dismissed on the 25th November. On the 18th December 1924 an application was made by the appellant for permission to pay the deficit costs. The stamp affixed upon the application is one of the value of Rs. 3 which would be the proper stamp if the application were regarded as one under Order XLI, Rule 19, of the C.P.C. If, however, the appellant is required to file an application for review of judgment, half the fee payable on the original memorandum of appeal is required and the application is insufficiently stamped.
2. The earlier decisions of this Court proceed upon the decision in Fatimunnisa v. Deoki Pershad 24 C. 350 : 1 C.W.N. 21 : 12 Ind. Dec. (N.S.) which held that an application to set aside a dismissal of an appeal for failure to file the necessary list must be regarded as one for review under Order XLVII, Rule 1. This authority would seem to govern the present case also and has been followed in the following cases:
(1) Civil Review No. 36 of 1916, decided on the 8th June 1917, by Roe and Jwala Prasad JJ.
(2) M.J.C. No. 95 of 1918, decided on the 20th June 1918, by Mullick and Thornhill, JJ.
(3) Review No 31 of 1920, decided on the 11th August 1920 by the Registrar as Taxing Officer.
(4) M.J.C. No. 35 of 1924, decided on the 30th May, 1924, by Das and Ross, JJ.
(5) Review No. 16 of 1924, decided on the 10th June 1924, by the Registrar as Taxing Officer.
3. On the other hand the following cases since 1923 have taken the view that the appeal can be restored by an application under Order XLI, Rule 19, read with Section 151 of the C.P.C.:
(1) Review No. 35 of 1923, decided on the 19th April 1924, by Jwala Prasad and Foster, JJ.
(2) M.J.C. No. 24 of 1923 and Review No 38 of 1923, decided on the 15th April, 1924, by Jwala Prasad and Adami, JJ.
(3) Review No. 30 of 1924 decided on the 20th November, 1924 by the Registrar as Taxing Officer.
4. If the decision in Fatimunnissa v. Deoki Pershad 24 C. 350 : 1 C.W.N. 21 : 12 Ind. Dec. (N.S.) is still good law, then the application under Order XLI, Rule 19, does not lie. From the wording of the rule in question it is difficult to see how it can be applied to a case of default otherwise than by non-appearance. It may be said that the Full Bench decision of the Calcutta High Court was made before the present C.P.C. when an order dismissing a case by default was considered to be a decree. But it does not appear that the change in the definition of a decree really makes any difference for the purpose of this case.
5. What the party is really seeking is reversal of an order, which, if it is not a decree, is certainly a judgment, and if the provisions for review do not apply, then there is no remedy at all given by the Code: Order XLI, Rule 19, certainly does not seem to be applicable. We think the words “for any other sufficient reason” in Rule 1 of Order XLVII will cover the case where there is good ground for not filing the deficit printing costs. If it does not, then the appellant has no remedy and we do not think Section 151 of the Code becomes applicable in every case in which there is no other-remedy. It does not appear that a Court has inherent power to set aside its own orders whenever it chooses to do so.
6. The application has today been stamped as an application for review and the necessary deficit fee has been paid. The fee will be kept in deposit and notice will issue upon the opposite party to show cause why the review should not be allowed.