RAMCHANDRA RAMRATAN Vs. MOTILAL RAMANAND

JUDGEMENT

(1.) QUESTION involved in this case at the present stage is whether the applicant, who had preferred this appeal in forma pauperis, can invoke the power of the Court under section 149 of the Civil Procedure Code for his being permitted to pay the court -fee requisite for the appeal.

(2.) ON 3 -8 -1953 the trustees submitted a petition for the delivery of the assets of the deceased held by the receiver. Another application to the same effect was filed on 13 -8 -1953. While these applications were pending consideration by the probate Court the suit filed by Motilal was decreed on 23 -11 -1953. Three days later another application was made to the probate Court by the trustees bringing to its notice the decree dated 23 -11 -1933 and praying for sanction of funds necessary for meeting expenses of an appeal to be preferred against that decree. The probate Court dismissed all the three applications on 11 -1 -1954. On the same day the applicant who is one of the trustees submitted an application for permission to appeal in forma pauper is and later on 5 -2 -1954 applied for condonation of delay in presenting the application under section 5 of the Limitation Act. An appeal was also filed against the order dismissing the application of trustees by the probate Court for delivery of assets and for sanction of funds to meet the expenses of appeal. On 30 -8 -1956 this latter appeal was allowed and the High Court directed that the trustees might be allowed to have necessary funds for the appeal. In pursuance of this the trustees got the funds on 31 -10 -1956. On 11 -11 -1956 the applicant submitted an application in the proceedings of appeal against the decree, which was at the stage of consideration regarding appellant's pauperism, purporting to be under section 149, Civil Procedure Code, praying for being allowed to pay court -fee in appeal on the ground that the trustees had by then come to possess the necessary funds and that it was not necessary to pursue the application for leave to appeal in forma pauper is.

(3.) IT appears that the appellant came by the necessary funds on 31 -10 -1956. Therefore so far as his ability to pay the court -fee is concerned there was no mala fide on his part. The only question is what is the effect of his having submitted a defective application for permission to appeal in forma pauperis upon the present application. Whether the Court has power to permit him to pay court -fee at this distance of time and whether assuming that the Court has such power should the discretion be not exercised in his favour on the ground that the application for permission for appealing in forma pauper is was not bona fide it having been presented beyond time and not having been signed, verified and presented as an application to sue in forma pauper is.