JUDHISTIR NATIA Vs. MANI DEI

JUDGEMENT

(1.) THIS is defendants' petition, challenging an order of the learned District Judge, cuttack, dated August 2, 1966 by which he allowed the unsuccessful plaintiffs-appellants' application to appeal as a pauper. The only point urged on behalf of the defendants petitioners is that the learned District Judge did not apply his mind to the question whether the decree appealed from is "contrary to law" as required by order 44, Rule 1 (2) Civil Procedure Code. Order 44, Rule 1 (2) Civil Procedure code is this.

(2.) THIS matter arose out of Title Suit No. 114 of 1963 filed by the plaintiffs (mother and son) in the Court of the Fourth Additional Subordinate Judge, cuttaek, for declaration of title in respect of the suit properties. The suit was dismissed by the trial court; against the decision, the mother-plaintiff filed a petition before the District Judge to be permitted to prosecute the appeal in forma pauperis alleging that she has no property except articles worth Rs. 27. 00 The said petition was opposed mainly on the ground that the mother-plaintiff is possessed of sufficient property to pay court fee. The learned District Judge heard the application and allowed it. The material portion of his finding is this: "thus I find that the petitioner is a pauper without means to pay the required court fee and accordingly allow her to file the appeal in forma pauperis Accordingly the petition is allowed. "

(3.) THERE is nothing at all to show from the judgment somewhat lengthy, having regard to the limited scope of the application that the learned District Judge at all kept in view the proviso to Rule 1 (2) of Order 44, Civil Procedure Code, namely, that the Court shall reject the application: "unless it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust" the learned Judge does not appear to have expressed or recorded any reasons for his allowing the application to appeal as a pauper; he is absolutely silent and does not even indicate that he kept in view the mandatory provisions of the proviso to rule 1 (2) of Order 44, Civil Procedure Code.