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Execution First Appeal No. 61 of 1976, heard on 1st October; 1984.

---S. 15--Civil Procedure Code (V of 19118), S. 149--Making up deficiency in court-fee--Deficient court-fee purchased before stipulated date but filed in Court after that date--Held, after having purchased necessary stamps, it was bounden duty to have filed same in Court well in time before terminal date--Question of altering time so readily did not arise as Court had in a way become functus officio--Mere act of purchasing stamps could not be equated with their being filed in Court Each day's delay had to be explained especially when it had all been so clearly put down in decree and plaintiff was quite aware of it Requisite vigilance not shown and a case of neglect which could not be allowed to form basis for extending time especially when opposite party had acquired a valuable right of getting a piratory suit of pre-emption dismissed--Executing Court was right in dismissing execution application in circumstances.

Iftekharul Haq Khan for Appellants.

Nemo for Respondent.

Date of hearing: 1st October, 1984.

This appeal impugns an order dated 23-10-1975 of the learned Civil Judge, Hafizabad, whereby he dismissed the appellant's application for execution of the decree passed in his favour on 25-2-1975 by the same Court. The valuation of the suit for court-fee and jurisdiction was questioned and the trial Court determined it in its finding on the relevant issue. It was held to bye Rs.23,400 for purposes of court-fee and Rs.46,800 for jurisdiction. Since the court-fee already paid was deficient, the trial Court allowed in the judgment itself the appellant to make good the deficiency till 26-5-1975, by which time, of course, the pre-emption money was also to be paid. The appellant paid up the pre-emption amount in time but somehow missed to make up the deficiency in court-fee. Although necessary stamps were claimed to have been purchased on the 5th of May, 1975, yet those were filed in the Court on 4-6-1975. In the course of execution, the learned Executing Court took the view that since the court-fee was filed beyond the terminal date, as mentioned in the decree, it had no power to extend it having become functus officio. It, therefore not only refused to extend the time for receiving the court-fee, but also dismissed the Execution Application, holding that the decree had become inoperative.

2. Counsel stressed that this was a case in which the appellant was quite vigilant to have purchased the necessary court-fee much earlier than the terminal date i.e. on the 5th of May, 1975, and that the delay in filing it on 4-6-1975, was not because of any neglect 4

misconduct on his part but owing to the fact that it was the next date in the execution proceedings.

3. I regret, I am not persuaded.. After having purchased the necessary stamps, it was the appellant's bounden duty to have filed it in the Court well in time before the terminal date, which incidentally in this case found mention in the decree-sheet itself. There was no question of altering it so readily as the Court had in a way become functus officio. To urge that virtually the stamps were filed on the date of their purchase inasmuch as the amount was received, by the bank acting as an agent for the Court; is not enough to absolve the appellant of his duty to have placed the some before the Court concerned The mere act of purchasing it could not be equated with its being filed in the Court. The date was clearly mentioned in the decree-sheet and should not have been lost sight of. The trial Court had the discretion of extending time under section 149, C.P.C, if otherwise invocable but it refused to extend it. t see no reason to differ with it because each day's delay' had to be explained especially when it had all been so clearly put down in the decree and the appellant was quite aware of it. Requisite vigilance was not shown and hence it was a case of neglect which may not be allowed to form basis for extending time especially when the opposite party had acquired a valuable right of getting a piratory suit of pre-emption dismissed Accordingly, the appeal is dismissed. Parties to bear their own costs.

M. A. K.

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