HET RAM Vs. CHANDGI RAM ETC.

JUDGEMENT

(1.) THIS is an application under Order 44, Rule 1, Code of Civil Procedure, for being allowed to appeal as a pauper from the judgment and decree of the learned Subordinate Judge 1st Class, Sonepat, dated 31st August 1964 There is also before us an application under section 5 of the Indian Limitation Act seeking extension of time.

(2.) DEALING first with the application under section 5, Indian Limitation Act, it may be noted that the judgment of the Court below is dated 31st August 1934. An application for a copy of the judgment and decree was made by the applicant on 4th September, 1964, but a copy of the judgment alone was granted on 17th September, 1964. The decree having not been prepared, its copy was not granted. It may be pointed out that in the judgment, the decree -sheet was ordered to be prepared, after payment of court -fee by defendant No. 1, Chandgi Ram. It is stated at the bar that the amount of court -fee was not paid and it was for this reason that the decree sheet was not prepared. The decree sheet was prepared on 8th October, 1964 and another application for securing a copy thereof was presented on 26th November, 1964. This was made available on 28th November, 1964, and the petition for leave to appeal was presented in this Court on 2nd December, 1964.

(3.) IN so far as the question whether it is a fit case for allowing the petitioner to appeal as a pauper is concerned, his learned counsel has very strongly urged that it is not open to this Court at this stage to go into the question whether the decree appealed from is contrary to law or some usage having the force of law or is otherwise erroneous or unjust within the contemplation of Order 44, Rule 1(2), Civil Procedure Code. According to his submission, once this Court has issued notice on this application, the Court should be deemed finally to have come to a conclusion in his favour and that should conclude the matter finally so far as this point is concerned, the only question which the Court can now go into is whether or not the petitioner is in fact a pauper. In support of his contention, the counsel has relied on Shib Krishan Das v. Panchanan Ganguly, etc., A.I.R. 1061 Cal 346 (F.B ) and support has specifically been sought from paragraph 7 of the judgment at p. 349, of the report. In addition, reference has been made to Krishna Bhatta v. Ananta Bhatta : A.I.R. 1961 Ker 309, and Abdul Majid. v. Bhaurao Atmaram : A.I.R. 1959 Bom 67. The counsel has also cited a recent Bench decision of this Court in Shrimati Mohd. -un -Nisa Begum v. Fayaz Ali Hashmi : A.I R. 1958 P&H 437, and it has been pointed out that though in the reported case, the Bench did not ultimately, follow the view adopted in the Calcutta decision, nevertheless, the judgment does clearly suggest that the view taken by the Calcutta High Court is more in accord with the legislative intent.