NARSINGH DASS Vs. MOOL RAJ

JUDGEMENT

(1.) THIS is an application in revision against the order of the District Judge, jodhpur, dated 27-7-1957, and arises in the following circumstances:

(2.) THE petitioner wanted to file an appeal in the court of the learned District Judge, jodhpur, against the judgment and decree passed against him by the Civil Judge, jodhpur, on 17-12-1956, in a money suit. The petitioner presented an application for leave to file an appeal in forma pauperis. The appellate court ordered a notice to be issued to the respondents. When that application came before the court on 27-7-57, it was submitted by the non-applicants that since the decree was not contrary to law or some usage having the force of law or otherwise erroneous or unjust, it should be dismissed under the proviso to Order 44, R, 1, C. P. C. This argument found favour with the learned District Judge and he dismissed the petitioner's application for permission to appeal in forma pauperis. It is against this order that the present revision application has been filed.

(3.) LEARNED counsel for the applicant has urged that the appellate court could reject his application under the proviso to Order 44, Rule 1 at the time when it was presented, but once the court had issued notice to the opposite party, there was no jurisdiction left in the court to pass any order under the proviso. He means to say that once the notice was issued to the opposite party, the court lost its jurisdiction to dismiss the application under the proviso and thereafter it could only make an enquiry into the pauperism of the petitioner. In support of his argument learned counsel has referred to Sin. Panchu Bala Dasi v. Nikhil Ranjan pal AIR 1956 Cal 530 (A), in that case it was held that