KATAM VIRUPAKSHIAH Vs. MATAM SIVALINGAIAH

JUDGEMENT

(1.) This is an application in revision against the order of the Court of the District Munsiff of Adoni refusing to allow the petitioners to sue in forma pauperis. The order was made under Order 33, Rule 7(3) of the Civil Procedure Code and was based on the learned District Munsiffs finding that the petitioners were in a position to raise the requisite court fee of Rs. 225 by giving their property as security and that the allegations in their petition do not show a cause of action. The learned District Munsiff also found that the petition is not bona fide; but it is conceded that this is not one of the grounds specified in Order 33, Rule 5, on which the petition could be rejected.In support of the revision, it is contended on behalf of the petitioners that the reasons given by the learned District Munsiff have nothing to do with the conclusions reached by him.

(2.) The material facts may be briefly stated. The three petitioners are the minor sons and respondents 2 and 3 are the adult sons of the 1st respondent. They are members of a joint family or which the 1st respondent is the manager. In or about 1951, the 2nd respondent executed a promissory note in favour of the 4th respondent for money said to have been borrowed by him ill connection with some contract work. The 4th respondent tiled O. S. No. 255 of 1954, impleading respondents 1 to 8 as defendants 1 to 3 and the minor petitioners represented by their father as defendants 4 to 6. Written statements were filed by the respondents 1 and 3 and the petitioners. But on the date of the trial their pleader reported no instructions. On 4-3-1955, the suit was decreed ex parte against ail the defendants.The 4th respondent filed E. P. No. 339 of 1955 in execution of the decree and attachment of the immoveable properties belonging to the family of the judgment-debtors was effected on 6-1-1956. On 31-1-1956, respondents 1 and 2 paid Rs. 100 towards the decree. Time was granted till 15-5-1956 for payment of the balance and E. P. No. 339 of 1955 was dismissed. As the balance was not paid, the 4th respondent filed E. P. No. 201 of 1955 to recover Rs. 4985 and odd by sale of the attached properties. The advocate on behalf of the judgment-debtors asked for further time till April 1957, but this was refused and the execution stood adjourned to 29-9-1956 for filing sale papers,Meanwhile on 26-9-1956 the petitioners tiled O. P. No. 28 of 1956 through their sisters husband as the next friend seeking permission to sue in forma pauperis for partition of their half share in the family properties. It was alleged in the petition that the 2nd respondents debt was not binding on the other members of the family that although the petitioners had a good defence their guardian in O. S. No. 255 of 1954 acted fraudulently and illegally without safeguarding their interests and that the petitioners were entitled to a declaration that the decree in O. S. No. 255 of 1954 was not valid and binding on their shares. On 5-10-1956, as the sale papers filed by tile 4th respondent were rejected, E. P. No. 201 of 1956 was dismissed and the attachment was raised.

(3.) Sri N. Ramamohana Rao, the learned counsel for the 4th respondent, raised a preliminary objection that the revision petition is not maintainable, as an appeal lay from the order in question dismissing O. P. No. 28 of 1958. Under Clause (nn) added in Madras to Order 43, Rule 1, Civil Procedure Code, an appeal lies from