DHULIPALLA BRAHAMARAMBA Vs. DHULIPALLA SEETHARAMAYYA AND ORS.

JUDGEMENT

(1.) ONE Dhulipala Venkata Subba Rao and his two minor brothers, Sreedhara Rao and Butchaiya, filed an application in the Court of the Subordinate Judge, Tenali, asking to be allowed to sue in forma pauperis for a decree for the partition of Immovable property. The application complied with all the requirements of the Code of Civil Procedure with regard to a plaint. The document was in form and substance a plaint, coupled with a prayer to be allowed to sue without payment of the Court -fee. Before the Court had time to inquire into the alleged pauperism of the petitioner, Dhulipala Venkata Subba Rao died. Thereupon, his mother, the petitioner now before us, applied to be brought on the record as his legal representative and to be allowed to continue the suit in his place.... She signified her willingness to pay the Court -fee. The Subordinate Judge relying on the judgment of Horwill, J., in Anasuyamma v. : AIR1943Mad646 dismissed the application. The petitioner then asked this Court to set aside the order of the Subordinate Judge in the exercise of its revisional powers. In the first instance the matter came before Happell, J., who referred it to a Bench for decision. In his order of reference the learned Judge pointed out that the decision of Horwill, J., was in conflict with the judgment of Bardswell, J., in Duraipandiya v. Solaimalai Pillai, (1934) 67 M.L.J. 332 :, I.L.R. 58 Mad. 169.

(2.) IT follows from what we have said that the question involved is whether the legal representative of a person who dies during the pendency of an application to be allowed to sue in forma pauperis can be brought on the record and allowed to prosecute the suit on payment of the requisite Court -fee. The decision of the question requires the consideration, not only of the two cases referred to, but of the judgment of the Privy Council in Stuart Skinner v. and of other authorities. The judgment of the Privy Council in Stuart Skinner v. has a very important bearing on the question under discussion, but its effect has not always been properly understood. There, a person applied for leave to sue as a pauper, but pending the inquiry into his alleged pauperism he obtained funds which enabled him to pay the Court -fee. He was allowed by the Court to pay the Court fee, whereupon his petition was numbered and registered as a plaint. The Judicial Committee held that in those circumstances the suit should be deemed to have been instituted from the date when the petition to sue in forma pauperis was filed and that limitation ran against him only upto that time. The Code of Civil Procedure of 1859 was then in force. After referring to its provisions with regard to applications to sue informa pauperis Sir Montague E. Smith, in delivering the judgment of the Board, said:

(3.) ORDER XXXIII, Rule 15 of the Code now in force provides that an order refusing to allow the applicant to sue as a pauper shall be a bar to a subsequent application of the same nature in respect of the same right to sue, but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of the right claimed, provided he pays the costs, if any, incurred by the Provincial Government and by the opposite party opposing the application for leave to sue as a pauper. It has always been the practice of this Court, when an application to sue in forma pauperis has been refused, to allow the applicant to pay the requisite Court -fee within a stipulated period and on payment of the Court -fee within the time allowed to regard the suit as having been instituted on the date on which the application for leave to sue in forma pauperis was presented.