Judgment :- 1. The plaintiff is the revision petitioner. The revision petition is from an order refusing to amend the decree. The amendment sought for related to the amount of advocate's fee entered in the decree. There was an appeal filed in the High Court from the decree of the District Court. That appeal was rejected for non-payment of court fee. A decree was, however, prepared in the appeal. The court below rejected the petition for amendment on the ground that there having been an appeal from the decree of that court the appellate court alone had jurisdiction to amend the decree. 2. I do not think that the view taken by the court below is correct. Even if the rejection of the appeal for non-payment of court fee amounts to a decree it cannot be said that the decree of the District Court has merged in that decree. There is conflict of opinion on the question whether the rejection of an appeal for non-payment of court fee will amount to a decree. The question was discussed by Gajendragadkar, J. in Phaltan Bank v. Babu Rao (A.I.R. 1954 Born. 43). The learned judge said: "On the question as to whether the rejection of a memorandum of appeal for failure of the appellant to pay adequate Court fee amounts to a decree or not, there is a conflict of judicial opinion. But, on the whole, it appears that the majority of the High Courts have taken the view that a rejection of the memorandum of appeal does not amount to a decree. It is unnecessary to refer to these decisions in detail. It may be enough to state that the Full Benches of the Madras High Court - Kayambu Pillai In re, (1941 Mad. 836 F.B.), and the Nagpur High Court - Balaji Dhumnaji v. Mt. Muktabai (A.I.R. 1938 Nag. 122 F.B.), and the Division Benches of the Calcutta High Court - Jananadsundari Shaha v. Madhabchandra (1932 Cal. 482), and Oudh Chief Court - Jagdish Kumar v. Hari Kishan Das (1942 Oudh 362) are in favour of the view which we have expressed. Lekha v. Bhauna (18 All. Muktabai (A.I.R. 1938 Nag. 122 F.B.), and the Division Benches of the Calcutta High Court - Jananadsundari Shaha v. Madhabchandra (1932 Cal. 482), and Oudh Chief Court - Jagdish Kumar v. Hari Kishan Das (1942 Oudh 362) are in favour of the view which we have expressed. Lekha v. Bhauna (18 All. 101 F.B.) can also be treated as supporting this view because it has been held in this case that an order rejecting the appeal on the ground that proper security was not furnished by the appellant as he was called upon to do does not amount to a decree. On the other hand Gour Charan v. Mohan Sahu (23 Pat. 635) and a single judge of the Calcutta High Court in Abdul Majid v. Amina Khatum (1942 Cal. 539) have held that an order rejecting the memorandum of appeal on the ground that it has not been properly stamped amounts to a decree. With respect, we do not agree with this latter view." 3. It is, however, not necessary to decide that question in this revision petition. As stated already, even if the rejection of the appeal for non-payment of court fee amounts to a decree, I do not think that the decree of the District Court can be said to have merged in that decree. In Bapu v.Vajir (21 Born. 548) Farran, C.J., held that where an appeal is summarily dismissed under 0.41 R.11, C.P.C. the decree of the lower court is neither varied nor reversed but is left untouched and that, therefore, it is the original court, and not the appellate court, which can amend the decree. This decision was followed by Chagla, C.J., in Hussain Sab v. Sitaram (1953 Born. 122). The same view was taken by Wort, J. and Fazl Ali, J. in Batuk Prasad v. Ambika Prasad (1932 Pat. 238), by Macnair, J.C., in Sheolal v. Md. Ismail (1933 Nag. 117) and by Ziaul Hassan and Yorke, JJ., in Triburi Prasad v. Rukmin Devi (1941 Oudh 251). In the latter case the learned judges relied on the following observation of their Lordships of the Judicial Committee in Abdul Majid v. Jawahirlal (36 All. 350): "The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. 350): "The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognises authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all." 4. On the question whether when an appeal is summarily dismissed under 0.41 R.11, Code of Civil Procedure the decree of the lower court remains in tact and whether the application for amendment of the decree should be made to that court or to the appellate court, a different view was taken in Subamma v. Madhavarao (1946 Mad. 492), Uma Sundari Devi v. Bindu Bashini Chowdrini (24 Cal. 759) Asma Bibi v. Ahamed Husain (30 All. 290) and Bhagawat Devi v. Sankaralal (95 S.C. 649 All.). Whatever may be the position with regard to the effect of the dismissal of the petition under 0.41 R.11, I have no doubt that in a case in which the appeal is rejected for non-payment of court fee the decree of the trial court is not superseded by the decree of the appellate court even if a decree is prepared in the appeal. It is, therefore, the lower court that has jurisdiction to amend the decree. The court below was not right in rejecting the application for amendment of the decree on the ground that it had no jurisdiction. The order is, therefore, set aside and the petition is sent back to the court below for disposal on the merits. The revision petition is allowed. There will, however, be no order as to costs. Allowed.