MATUKI MISTRY Vs. KAMAKHAYA PRASAD

JUDGEMENT

(1.) Respondent No. 1 filed an application in the court below for permission to sue in forma pauperis under the provisions of Order 33 of the Code of Civil Procedure. He also made an application under the provisions of Order 39 of the Code of Civil Procedure for an injunction, restraining the appellant from proceeding with certain execution case until the final disposal of his application to sue in forma pauperis. The court below allowed that application and passed an order of injunction restraining the appellant from Proceeding with the aforesaid execution case. Being thus aggrieved the appellant preferred the present appeal.

(2.) This case was placed for hearing before Sinha and Dayal, JJ., before whom an argument was put forward on behalf of the appellant that Order 39 of the Code of Civil Procedure has no application until the application to sue in forma pauperis has been allowed, and there is no suit in which an order of injunction can be passed. Since there appeared difference of opinion amongst the several High Courts on the question relating to the point at issue, their Lordships referred/the following question of law for decision by a larger Bench :

(3.) It has been submitted on behalf of the appellant that an application to sue in forma pauperis is deemed to be a plaint in the suit when it is granted and till then there is no suit in which an order of injunction under Order 39 can be passed. On behalf of respondent No. 1, the pauper applicant, it has been contended that the suit is instituted as soon as an application to sue in forma pauperis is filed,