ANANDA PRAKASH DEY Vs. SOVA RAY

JUDGEMENT

(1.) ONE Kananbala died in 1956. She had three sons Brajagopal who died in 1965, goshtagopal (defendant No. 9 ). and Nitvagopal who pre-dec-ased her in 1953. Sova (plaintiff No. 1 -- opposite partv No. 11 and Krishna (plaintiff No. 2 -opposite party No. 2) are the daughters of Nityagopal. Defendants 1 to 4 and 8 are the sons and daughters of Braiagopal. some of the heirs of Braiagopal filed T. S. No. 63 of 1965 in the court of the Subordinate Judge, Baripada, for partition claiming half share in the properties left by Kananbala. Plaintiffs were defendants 2 and 3 in that suit. Opposite party No. 1 was set ex parte and opposite party No. 2 who was a minor then was represented by a court guardian. On 21st of december, 1966 a preliminary decree for partition was passed whereby eight annas interest was decreed in favour of the heirs of Brajagopal. Plaintiffs filed M. J. C. No. 101 of 1967, an application in forma pauperis. on 27-11-1967 for a declaration that the decree in T. S. No. 63 of 1965 is void and not binding on them. They claimed one third interest in the properties left by Kananbala. On 22nd of April 1968 opposite parties 1 and 2 (petitioners in the pauper application) filed a petition praying for converting the application in forma pauperis into a suit on payment of court-fee. On 29-4-1968 the learned Subordinate Judge passed the following order:

(2.) THE question for consideration is whether the suit is liable to be dismissed for non-payment of cost of Rs. 10/-as directed by the court on 29-4-1968.

(3.) ORDER 33. Rule 15. C. P- C. runs thus: