ANKALA VENKATA REDDY Vs. MANCHALA VENKATA REDDY

JUDGEMENT

(1.) AN application was made in the Court below to execute two orders, one relating to the grant of costs by the High Court in a petition presented against an order granting permission to sue in forma pauperis, and the other relating to the grant of day costs to the plaintiff, when the defendant asked for an adjournment of the case. The District Judge dismissed the application. Hence this appeal. A preliminary objection is raised by Mr. Jayarama Iyer that no appeal lies. We think he is right. The orders referred to are not decrees. Weareprepared to accept the extended definition suggested in Narayan Balkrishna Kulkarni v. Gopal Jiv Ghadi23 Ind. Cas. 889 : 38 B. 392 : 16 Bom. L.R. 206 regarding the meaning of the term "matters in controversy" in the definition section. That expression is not to be understood as referring solely to the merits of a case. ANy question relating to the character and status of the party suing, to the jurisdiction of the Court, to the maintainability of the suit, and to other matters preliminary, which necessitate an adjudication before the suit is enquired into, will be covered by the expression. But there must be a suit pending. Taking first the application to sue in forma pauperis, it is only after the grant of the application that the suit begins. As pointed out in Secretary of State for India v. Jillo 21 A. 133; A.W.N. (1898) 204 the order rejecting an application to sue as a pauper will not be appealable as a decree. The application in such cases is analogous to a petition for leave to sue under. Act XX of 1863. It has been held in Mozaffer Ali v. Hedayet Hosain 34 C. 584 : 5 C.L.J. 641 that orders passed on such appfications are not decrees. The reasoning applies equally to the order passed in pauper application. We must, therefore, hold that proceedings passed in execution in regard to such orders do not fall under Section 47 of the Code of Civil Procedure, although the order itself can be executed under Section 36 of the Code of Civil Procedure. This reasoning applies a fortiori to the order granting day costs. The preliminary objection is allowed and the appeal is dismissed with costs.