C G DEVARAJU NAIDU Vs. T M PRABHUVIAH

JUDGEMENT

(1.) This revision petition has been referred to a Bench, it involves a question of law of some importance on which there has been no decided case of this Court so far.

(2.) One Gurtiswami Naidu, father of the petitioner who claims to be his only son and legal representative, filed an application under Order 33, Rule 1, Civil P. C., seeking permission to sue in forma pauperis, for partition and possession of a Half share in some tmmoveable properties. The application was accompanied by an unstamped plaint purporting to be under Order 7 Rule 1, Civil P. C. Notices were ordered on his application but before his pauperism was enquired into, and his application registered as a suit Guruswami Naidu died. The petitioner filed two applications LA. No. 1 under Order 22, B. 4, Civil P. C., to be brought on record as the legal representative of the deceased plaintiff and allowed to continue the proceedings initiated by his father; and I. A. No. 2 under O. 33, Rule 1, Civil P. C. praying for permission to sue md continue his father's suit in forma pauperis is he himself was unable to pay the necessary court-fee on the plaint.

(3.) The District Judge of Shimoga dismissed those two applications. He was of the view that the right to sue in forma pauperis was a right personal to the deceased and that the petitioner could not be allowed to continue those proceedings. His remedy was either to pay court-fee on the plaint already filed when the same could be registered as a suit, or make a fresh application of his own observing the necessary formalities for permission to sue in forma pauperis. In support or this order he has relied on a decision of this Court in -' Arifulla v. Unji Abdul Wahab', 21 Mys. L. J. 201 and refused to follow a case in --Annapurnabai v. Balaji Maroti', AIR 1946 Nag 320 as he considers that the same was opposed to the law laid down in 21 Mys L. J. 201. There is no doubt that in 21 Mys L. J. 201 at p. 205 Singaraveiu Mudaliar, J. sitting as a single Judge in revision has observed :