CHILLA SUBRAHMANYAM Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THE appellant was the petitioner in O. P. No. 24/77 on the file of the Court of Subordinate Judge, Razole. He filed that application to the Court under Order 33, Rule 1 of the Civil Procedure Code. By that he sought leave of that Court to sue the State of Andhra Pradesh as an indigent person previously known plainly as pauper. If his application had been granted the appellant would have been free to sue the State without paying the Court fee. But the Government successfully opposed the petitioner's claim. It said in its counter filed in the above O. P. No. 24/77 that the petitioner was not without means to pay the Court fee. As the petitioner had withdrawn Rs. 3200-from his General Provident Fund subsequent to his filing of O. P. the Government contended that the petitioner could not be said to be an indigent person within the meaning of Order 33, Rule 1 of Civil Procedure Code and more particularly Explanation 1 (a) to that provision. THE petitioner examined himself as P. W. I. He admitted the fact of withdrawal of the above amount of money from his G. P. F. but pleaded that he had spent Rs. 2946 out of the withdrawn amount to discharge promissory note debts. In proof of this claim the petitioner exhibited Exs. A-1 to A-3 discharged promissory notes. THE learned Subordinate Judge observed that "he should have first paid the court fee, but be has not done so ; nor he examined the alleged creditors from whom he borrowed the amounts under Exs. A-l to A-3. I am not inclined to believe in absence of any corroborative proof. Accordingly the learned Subordinate Judge refused to grant leave to the petitioner to sue as an indigent person and dismissed the above O. P. THE present appeal is against that order of dismissal. Mr. V. L. N. Gopala Krishna Murthy, the learned counsel for the appellant accepting the above findings of the lower Court based on ample evidence to be correct, argued with commendable brevity and clarity that the lower Court erred in taking into account for purposes of deciding the indigent status of the petitioner the above sum of Rs. 3200/- withdrawn from G. P, F. His argument was that as per Section 60 (1) (k) of the C. P. C. as well as the provisions of the Provident Fund Act, the said sum of Rs. 3200/- was immune from attachment in execution of a decree and therefore under Explanation (1) (a) to Order 33 of the Civil Procedure Code that amount ought not to have been counted against the petitioner for the purposes of holding that the petitioner was not an indigent person. Let us first read Order 33, Rule 1, C. P. C. together with Section 60 (1) (k) of the same Code. Let us also read the relevant provisions of the General Provident Fund Act. "Section 60 (1) '. THE following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf : Provided that the following particulars shall not be liable to such attachment of sale, namely : (k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, (1925) (19 of 1925), for the time being applies in so far as they are declared by the said Act not to be liable to attachment ; ORDER 33, Rule (1) reade thus :