BEERAV ALLI DESIREDDI Vs. YELURI RAMA RAO

JUDGEMENT

(1.) This Civil Revision petition is directed against an order dismissing an application filed under Ss. `151 to 153 of the Code of Civil Procedure to amend the judgment and decree in A. s. No. 176 of 1969 on the file on the District Judge, Guntur, to grant time for payment of court-fee. The petitioner filed O. P. No. 67 of 1967 in the District Munsiff Court, Guntur along with a plaint to permit him to sue in forma pauperis. The learned District Munsiff dismissed the application refusing to grant permission to the petitioner to sue in forma pauperis holding that he has means to pay the court-fee payable on the plaint and gave time to him to pay the court-fee till 10-5-1969. Against this order of the District Munsiff refusing to permit him to sue in forma pauperis. the petitioner did not file any revision petition which lies against such an order. When the petitioner failed to pay the court-fee as direct by the Munsiff court within the time granted, the District Munsiff passed an order rejecting the plaint. It is against this order rejecting the plaint the petition preferred the appeal A. S. No. 176 of 1969 referred to above to the District Court. Guntur canvassing the correctness of the order passed by the District Munsiff refusing to permit him to sue in forma pauperis. The District Court agreeing with the Munsiff Court pay the court-fee payable on the plaint and dismissed the appeal. But while dismissing the appeal the District Court did not grantee any time for the petitioner to pay the court-fee payable on the plaint. Therefore, the petitioner filed I. A. No. 559 of 1970,. out of which this revision has arisen, to amend the judgment and decree passed in the appeal for granting time for payment of court-fee within two months. The learned District Judge dismissed the application as not maintainable. It is this order passed by the learned District Judge that is assailed in this revision petition.

(2.) Though there is no specific provision of law for granting time for payment f court-fee on a pleading while rejecting the application to sue in forma pauperis it has been laid down in several decided cases that it is undoubtedly the practice conclusion on a pauper application to give the party some time to pay the court-fee. It is on account of this practice only, the District Munsiff while dismissing the application filed by the petitioner to permit him to sue in forma pauperis granted time till 10-5-1969 to pay court-fee within the time allowed. the petitioner preferred an appeal against the order rejecting the plaint treating it as a decree to canvass the correctness of the order of the District Munsiff Court in coming to the conclusion that he is not a pauper. If the final order passed by the District Munsiff in the proceedings rejecting the plaint when the petitioner failed to pay court-fee within the time granted amounts to a decree, the earlier order passed by the Munsiff Court refusing to allow the petitioner to sue in forma pauperis merges in the decree and the correctness of that order could be canvassed in the appeal filed against the final order passed rejecting the plaint. If that is so, when the appeal was filed by the petitioner questioning the correctness of the order of the District Munsiff with regard to his pauperism the matter was at large and in the appeal that matter would have to be gone into to find out whether the petitioner is a pauper r not. Having gone into that matter the District court came to the conclusion that the petitioner is not a pauper. When the District court came to that conclusion, as per the practice allowed by several courts, the District court ought to have granted some time for payment of court-fee. While dismissing the appeal the learned District Judge did not say anything about it. Therefore, it became necessary for the petitioner to move the District Court by way of an application for the purpose of granting of time to pay the court-fee. It is different matter whether Sections 151 to 153 of the Code of Civil Procedure are the proper provisions or not under which the application has to be made. Therefor the Leonard District Judge failed to exercise the jurisdiction vested in him in coming to the concussion that the application is not maintainable for the purpose for which it was filed.

(3.) Mr. B. V. Subbaiah, the leaned counsel who argued for the respondent has strenuously contended that once an application to sue in forma pauperis is filed along with a plaint it amounts to filing of a suit in forma pauperis and when the plaint was rejected ultimately in the proceedings on the failure of the applicant to pay court-fee as directed by the court thin the time granted, it amounts to dismissal of the suit for default and the term decree as defined in Section 2 (2) of the Code of Civil Procedure excludes any order of dismissal for default and therefore the order passed by the District Munsiff finally in rejecting the application when the petitioner failed to pay the court-fee within the time granted amounts to dismissal of the suit for default in payment of court-fee. Therefore according to the learned counsel no appeal lies against that order and the appeal filed against the order in A. S. No. 176 of 1969 on the file of the District Court did not lie at all. If that is so, according to the learned counsel the question of granting of further time for payment of court-fee by the District Court in the apparel would not arise at all. If that appeal is not maintainable I think that would be the position. Therefore the question is whether the order ultimately passed by the District Munsiff court in the pauper proceedings rejecting the application is an appealable order or not. It is not one of the appealable orders as mentioned in Order 43 of the Code of Civil Procedure. An appeal would lie against that order if that order amounts to a decree as it is defined in Section 2 (2) of the Code of Civil Procedure according to which Decree means the normal expression f an adjudication which, so far as regarded the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final and it shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or S. 144, but shall not include (a) any adjudication from which an appeal liars as an appeal from an order or (b) any order of dismissal for default. If the order in question amounts to rejecting of plaint, for whatever reason it might be, certainly it would be a decree as per the above definition. If it is a decree the appeal filed was competent.