JUDGMENT V.N. Khare 1. By means of the present petition under Article 226 of the Constitution of India, the petitioner has come up before this court against the order dated 8-7-1985 passed by the Additional District Judge, Gyanpur Varanasi. 2. The petitioner filed a suit for specific performance of contract for sale of a bouse situated on plot no. 928/M, Gopiganj, Varanasi. The suit was registtred as suit no. 358 of 1978. The respondent no. 2 contested the said suit. Ultimately, the learned Munsif, Gyanpur by his judgment and order dated 10-5-1982 decreed the suit under Order 17 rule 3 of the Civil Procedure Code. Respondent no. 2 on (0-5-1982 filed an application before the Munsif, Gyanpur for setting aside the exparte decree. The said application was rejected by the learned Munsif on 10-5-1982. 3. On 28-5-1982 respondent no. 2 filed an application under order 9 rule 13, Civil Procedure Code, for setting aside the exparte decree dated 10-5-1982. The petitioner filed objection to this application. While this application was pending, respondent no. 2 filed a Misc. appeal before the Addl District Judge, Varanasi purporting to be under order 43, rule 1 (d) of the Civil Procedure Code. This appeal was numbered as Misc. Appeal no. 51 of 1982. ON 16-1-1984 respondent no. 2 filed an application before the learned District Judge for permitting him to amend the title of memo of the appeal by inserting order 41 rule 1, CPC. The petitioner filed objection to the said amendment application moved by respondent no. 2. 4. The Additional District Judge by his order dated 25-2-1984 rejected the said amendment application of respondent no. 2 on the ground that by amending the title of the appeal respondent no. 2 wants to convert the Misc. appeal into a regular appeal which cannot be done because of non payment of the court fee as well as the period of limitation for filing a regular appeal has already expired. Subsequently, respondent no. 2 moved another application praying that he may be granted time to deposit the balance court tee and the misc. appeal may be converted into that of a regular appeal. This application was opposed by the petitioner. The Additional District Judge by means of the impugned order dated 8-7-1985 allowed this application and directed respondent no. Subsequently, respondent no. 2 moved another application praying that he may be granted time to deposit the balance court tee and the misc. appeal may be converted into that of a regular appeal. This application was opposed by the petitioner. The Additional District Judge by means of the impugned order dated 8-7-1985 allowed this application and directed respondent no. 2 to pay proper court fee on the suit as required in a regular civil appeal within a week from the date of the order and on payment of proper court fee the Misc. appeal shall be treated as a regular civil appeal. The present writ petition is directed against this order. 5. Heard learned counsel for the parties. 6. The learned counsel for the petitioner contended that in view of the order dated 25-2- 1984 rejecting the amedment application of respondent no. 2. The prayer for paying deficiency in court fee could not have been granted as the principles of res judicata will apply in the case at subsequent stage also. In support of his contention, the learned counsel has cited a decision of the Supreme Court in the cast of Y. B Patel v. M. L. Patil, AIR SC 392. Infact, the submission is that since respondent no. 2 did not challenge the order dated 23-2-1984 not using to amend the title of memo of appeal by Inserting words order 41 rule 1, his prayer that his appeal be treated as regular appeal as he is ready to pay the proper court-fee, could not be granted as the principles of resjudicata would bar such grant of prayer. After looking into the record, i find that in the application for amendment the prayer was for inserting the words "order 41 rule 1 CPC" in the memo of appeal. In this application there was no prayer to pay deficiency In court fee required for filing a regular appeal. Since there was no prayer in the aforesaid application for permitting respondent no. 2 to pay the requisite court fee, the order passed on his amendment application would not bar him in moving an application for extension of time to deposit the required court fee for treating the appeal into a regular appeal. The prayers in both the applications, were infact different. 2 to pay the requisite court fee, the order passed on his amendment application would not bar him in moving an application for extension of time to deposit the required court fee for treating the appeal into a regular appeal. The prayers in both the applications, were infact different. So far as the subsequent application is concerned, the court in exercise of its inherent power under section 149 CPC can permit as regard the extension of time for payment of the court-fee. 7. The learned counsel then further urged that the regular appeal is now barred by time and no order could be passed by the court permitting the respondent to deposit the required court fee for treating Misc. Appeal as a regular appeal. In Shasay Ganesh Prasad Ray v. Harendra Nath Sen, AIR 1953 SC 431 , it was held that the question of payment of court fee is primarily a matter between the Government and the person concerned, and therefore, where the High Court in exercise of the discretion allows the appellant to amend his memorandum of appeal and grants time for payment of deficient court-fee under section 149, the other party cannot attack the order on the ground that it takes away his valuable right to plead the bar of limitation. In view of law laid down by the Supreme Court, it can be held that it is open to the court to permit the appellant to pay proper court fee and treat the Misc. Civil appeal as a regular appeal. Once the court exercise its discretion to grant time to appellant under section 149 CPC to make good the deficency wiinin a particular time and the appellant makes payment of the deficient court fee within the time so granted, the deposit takes effect from the date of filing of such an appeal and the appeal is treated to have been filed within time. In other words, whenever court permits the appellant to deposit the court fee, the question of limitation does not come in way. In the instant case the appellate court found that respondent no. 2 was wrongly advised to file Misc. appeal instead of regular appeal against the exparte decree and the appellant should not be made to suffer on account of the wrong advice of his counsel. In the instant case the appellate court found that respondent no. 2 was wrongly advised to file Misc. appeal instead of regular appeal against the exparte decree and the appellant should not be made to suffer on account of the wrong advice of his counsel. In this view of the matter the appellate court by exercising its discretion permitted the appellant to pay the deficient court fee. This discretion exercised by the appellate court permitting the respondent no 2 to pay the deficient court fee cannot be interfered under Article 226 of the constitution when it is found that substantial justice has been done between the parties. The argument, thus, has no force and is accordingly rejected. 8. No other point has been pressed by the learned counsel. In the result the writ petition fails and is accordingly dismissed. However, there shall be no order as to costs since the appeal is pending for a considerable period of time, I direct the appellate court to decide the same expeditously. -- Petition dismissed.