M CCHIKKANANJUNDAPPA Vs. D KPILLANNA

JUDGEMENT

(1.) This revision petition is directed against an order passed by the First Additional District Judge, Bangalore, in Misc. Case No. 106 of 1953 on his file permitting the respondents to continue the proceedings in this case in forma pauperis.

(2.) The respondents prayed for grant of a probate of the will and codicil alleged to have been, executed by S.M. Nanjundappa who died on 22-9-1948 in Misc. Case No. 106 of 1953 on the file of the First Additional District Judge, Bangalore. The present petitioner who was one of the respondents in the Court below resisted the application and contended that the respondents were bound to pay the court-fee on the value of the trust properties before they could pray for grant of a probate in the case. The learned District Judge directed the respondents to pay the court-fee. The respondents then made an application under Order 33, Rule 1, Civil P.C., for permission to continue the proceedings in forma pauperis. They alleged in their petition that they were not possessed of any property of the trust with them and that since all the trust properties were in the possession of the present petitioner they were not in a position to raise any money on the security of those properties and as such they were entitled to be permitted to sue or continue the proceedings in forma pauperis. The present petitioner opposed the application and contended that the application under Order 33, Rule 1, Civil P.C., had not been validly presented. He also contended that since the respondents were possessed of immoveable properties of their own, they were not entitled to sue in forma pauperis. The learned District Judge held that the application filed by the respondents was valid and that they were entitled to sue in forma pauperis in spite of the fact that they possessed properties of their own since they were not in possession of any properties belonging to the trust to enable them to raise moneys to pay the court-fee. It is against this order that the present revisiftn petition has been filed by the petitioner.

(3.) Three points were raised by Sri Nagaraja Rao, the learned Advocate for the petitioner (1) an application filed by the respondents under Order 33, Rule 1, Civil P.C., during the pendency of the proceedings was not maintainable, (2) Order 33, Rule 1, Civil P.C. is not applicable to the case and (3) since the respondents were possessed of properties of their own which were sufficient to enable them to pay the court-fee levied, they should not have been permitted to sue in, forma pauperis. There is no substance in any of these three contentions. Order 33, Rule 1, Civil P.C. reads thus :