KALAP NATH SINGH Vs. SHYAMA NAND

JUDGEMENT

(1.) THIS case was referred to a Bench of five Judges by our brothers Sankar Saran and Gurtu who were of the opinion that the decision of the Full Bench in -- 'chunna Maa v. Bhagwant Kisbore', air 1936 All 584 (A) needed reconsideration. In that case the point referred to the Full Bench for decision was as follows :

(2.) THE second point on which the learned Judges had differed was again referred to a Full Bench, and it came up before a Bench of which three of us were members, but the judgment has not yet been delivered -- 'divendar Kumar v. Mahant Raghuraj Bharti', AIR, 1955 All 154 (FB) (B)since reported. There was another case under Order 33 in which there was a difference of opinion between one of us and Pearey Lal Bhargava, J. Pearey Lal Bhargava, J. , was of the opinion that on the death of the petitioner no rights survived and the application for leave to sue in forma pauperis could not be continued by the legal representatives of the deceased. The other view was that, if the legal representatives were themselves paupers, they could claim in their own right to continue the application to sue in forma pauperis and, in case it was held that they were paupers and that the application filed by their predecessor was a bona fide application, the suit would be deemed to have been filed when the original petition was presented in court. The case was again referred to a Full Bench which held that on the death of the petitioner his legal representatives could pay the court-fees and continue the suit or if they were themselves paupers they could apply to continue the proceedings without payment of court-fees, and in that connection discussed the nature of an application for leave to sue in forma pauperis and agreed with the view expressed by Allsop, J. , in -- Chunna Mal's case (A)'; 'latifunnissa v. Mst. Khairunnissa', (S) AIR 1955 All 53 (FB) (C ).

(3.) THERE can be no doubt that an order under Section 149 of the Code can only be passed when there is a document still before the court, and once the court has lost seisin of the case and there is no document before it. it cannot grant time to pay the court-fee under that section.