FATMA BAI Vs. D R UMRIGAR

JUDGEMENT

(1.) THE applicant presented this application to the Prothonotary under Order XXXIII of the Civil Procedure Code for leave to sue as a pauper. Under Rule 2 her application was bound to contain all the particulars required in regard to plaints in suits, and was therefore bound to show a cause of action. Under Rule 5, the Court shall reject an application for permission to sue as a pauper inter alia when the applicant is not a pauper or when his allegations do not show a cause of action.

(2.) THE proposed suit was to set aside a sale to the second respondent effected by the first respondent as mortgagee. THE applicant as the mortgagor alleged that the mortgagee had not properly advertised the sale and had acted in collusion with the purchaser. THE first respondent admitted that there was a surplus due to the applicant after the amount due on the mortgage had been satisfied and paid into Court Rs. 101. He then contended (1) that the application disclosed no cause of action; and (2) that the applicant being entitled to the sum of Rs. 101 paid into the Court, was not a pauper.

(3.) WITH all due respect to the learned Judge who decided the case of Dwarkanath v. Madhavrao (1886) I. L. R. 10 Bom. 207, I am of opinion that his decision should not be followed; otherwise, whenever an application for permission to sue as pauper is made the respondent can always get the application rejected by paying into Court Rs. too out of the amount claimed.