LALCHETTY MAHALAKSHMI Vs. DEVALA NAGAMANI

JUDGEMENT

(1.) THE facts leading to this reference are these : THE unsuccessful plaintiffs filed an application for permission to prefer an appeal in forma pauperis under Order 44, Rule 1, C. P. C., from the judgment and decree of the Subordinate Judge Berhampur, dated 1-5-67. THEy had been permitted to sue in forma pauperis in the court below. On 25-8-67, the Division Bench before which the petition came up for admission, passed the following order : "Admit. Issue Notice." This means that the Court was satisfied prima facie about the erroneous character of the decree under appeal after hearing the applicant or his pleader under Order 44, R. 1 (2), and then admitted the application. In accordance with this order, notice was issued to the State and the opposite parties. THE notice was in the following form : * * * *

(2.) THE view which holds that the Court, after admission of an application under Order 44, R. 1, is still competent at the hearing stage of that application, on notice to the respondent, to go into the question whether the requirements of Order 44, Rule 1 (2), C. P. C., are satisfied or not, is represented in the following decisions :- AIR 1929 Lah, 514; AIR 1931 Pat 183 (FB); AIR 1933 Lah 256; AIR 1934 Lah 72; AIR 1934 All 424; AIR 1937 Nag 150; AIR 1958 Raj 133; AIR 1939 All 715; AIR 1951 Punj 173; AIR 1960 Guj 40 (FB). THE contrary view is subscribed to by an equal number of High Courts. THEy are to be found in the following decisions : AIR 1933 Mad 658; AIR 1936 Mad 661; AIR 1956 Cal 530; AIR 1959 Bom 67; AIR 1961 Andh Pra 65; AIR 1961 Cal 346 (FB); AIR 1961 Ker 309; (1962) 1 Mad LJ 420; 1962 Mys LJ 423 and AIR 1968 Mad 390.