PROVINCE OF ORISSA Vs. DIBYASINGH NAND

JUDGEMENT

(1.) This is an application by the Province of Orissa against an order passed under Order 33, Rule 15, Civil P.C., The opposite party had filed an application for leave to sue as a pauper which was registered as Miscellaneous case No. 46 of 1938. Four persons were arrayed as opposite party in that miscellaneous case. It appears that notice could not be served on opposite party 4 in that case and time was given to the present opposite party on several occasions for taking steps for service of notice on opposite party 4 in that case. The Government Pleader opposed the previous application. Ultimately on 28 January 1939, the following order was passed: Petitioner takes no steps to-day and he is absent on call. His pleader is also not to be found here and his clerk says that he has no instruction. Ordered that the case be dismissed for default. No costs.

(2.) The opposite party then filed a fresh application for leave to sue as a pauper on 26 March 1939. In this case the Government Pleader appeared and opposed the application on the ground that it was barred under the provisions of Order 38, Rule 15. That rule provides as follows: An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the Government and by the opposite party in opposing his application for leave to sue as a pauper.

(3.) The learned Subordinate Judge has held that the previous order of dismissal for default passed on 28 January 1939, does not amount to "an order refusing to allow the applicant to sue as a pauper" as contemplated by Rule 15. It is against this order that this application is presented by the Province of Orissa.