ORDER
B.P. Jha, J.
1. This civil revision petition arises out of an order dated 19th April, 1980. By this order, the appellate court dismissed the appeal,
2. The State of Bihar was the appellant before the court below. The State had to deposit the court-fee. The petitioner sent several telegrams as well its special messengers to send the deficit court-fee, but it was not sent within time. The court below gave time on 21st Mar 1980 and 8th April, 1980 for depositing the deficit court-fee. It appears that the total time granted by the court below was less than a month. On 19th April, 1980, the ‘court dismissed the appeal for non-payment of court-lees.
3. It is a matter of ordinary common-sense that the State takes at least one month’s time in depositing court-fee The amount of deficit court-fee was Rs. 1272.40 paise, as it appears from the order-sheet dated 10th Mar. 1980. This was not a small amount. Neither the Government Pleader nor the District Magistrate could have paid this amount from his own pocket. For that purpose, sanction is required to be obtained. The State took sufficient steps in informing the authorities for depositing the court-fee, but unfortunately the amount could not be made available for filing the deficit court-fee stamp. Even the private litigants are granted time at least for one month for depositing the deficit court-fee. I do not understand as to why the court was so strict in not granting time for filing the deficit court-fee stamp to the State. No doubt the State and the private parties both stand on the same footing. If a private party is granted sufficient time to file the deficit court-fee stamp, the State should also be granted sufficient time for filing the deficit court-fee stamp which has not been done in the present case. I, therefore, hold that the court below did not exercise the jurisdiction vested in it by law and it acted with material irregularity and not in accordance with the practice prevalent in the civil courts.
4. Learned Counsel for the opposite party contends that the order amounts to rejection of the memorandum of appeal and as such, it is appealable. In this connection, a reference was made to Section 2 (2) of the Code of Civil procedure (hereinafter referred to as ‘the Code’) which runs as follows :
“2. Definitions. — In this Act, unless there is anything repugnant in the subject or context,–
XX XX XX XX (2)' 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it. conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order or (b) any order of dismissal for default."
5. On a perusal of clause (b), it is clear that the order of dismissal for default will not be included as a decree. There is no provision In the Code for rejecting a memorandum of appeal. In the present case, the appeal in the court below had been numbered as Title Appeal No. 10 of 1980. It appears from the order dated 28th Feb. 1980, that the appeal was registered. If it is so there was a valid appeal preferred by the State of Bihar before the lower appellate Court. It also appears from the order dated 19th April, 1980 that the appeal was dismissed for default for non-payment of court-fee. If it is so, then I shall hold that it is not a rejection of the memorandum of appeal rather it is an order of dismissal for default.
6. Learned Counsel for the opposite party has cited a decision of this Court in Surai Pal Pandey v. Utti Pandey (AIR 1922 Patna 281). The facts of that case were that the appeal was dismissed for default Thereafter, the lower appellate court restored the appeal without having served any notice upon the respondents. The appellate court readmitted the appeal under Order 41, Rule 19 of the Code. Their Lordships were of opinion that such a dismissal will not come within the purview of Order 41, Rule 19 of the Cede. Their Lordships were of opinion that the restoration of appeal under Order 41, Rule 19 of the Code were not in accordance with law, and, therefore, they allowed the appeal and restored the decree of the Munsif. While discussing the case, their Lordships observed that the correct order would have been the rejection of memorandum of appeal. In my opinion, this observation of their Lordships is obiter dicta. That question was not for decision before their Lordships. The question for decision before their Lordships was whether the rejection of appeal under Order 41. Rule 19 of the Code was in accordance with law or not 1 They were not concerned as to whether the impugned order amounted to the rejection of the memorandum of appeal or not. I, therefore, hold that that portion of the order is obiter dicta and they were not required to give an opinion on that point.
7. I am of the view that there is no provision for rejection of the memorandum of appeal under Order 41, of the Code. Under Order 41, Rule 19 of the Code, the provision is that an appeal may be readmitted provided the appeal is dismissed under Rule 11 (2) or Rule 17 or Rule 18 of the Code. If an appeal is registered, then the appeal is required to be dismissed and not the memorandum of appeal.
8. I, therefore, hold that it is a case where the appeal was dismissed for default for non-payment of court-fee. If it is so, then it is not a decree under Section 2 (b) of the Code. It is not appealable. The only remedy is by filing a civil revision as the dismissal for default of an appeal falls within the purview of a decision of a case. I, therefore, hold that the civil revision lies. If the civil revision lies, then this Court can interfere with the order if the court below has acted with material irregularity or its order is tainted with jurisdictional illegality I hold that the court below acted in exercise of its jurisdiction vested in it by law illegally or with material irregularity. I, therefore, set aside the order dated 10th April 1980.
9. In the result, the petition is allowed and the order dated 19th April, 1980 is set aside and the case is remitted to the court below to proceed in accordance with law after the payment of court-fee by the State within one month from today. The parties shall bear their own costs