PERUMAL KOUNDAN Vs. THIRUMALARAYAPURAM JANANUKOOLA DHANASEKARASANKA NIDHI LTDTHROUGH ITS OFFICIAL LIQUIDATOR AVENKATASWAMI NAYUDU

JUDGEMENT

(1.) The Thirumalarayapuram Jananukoola Dhanasekhara Sanka Nidhi Ltd., which was a company registered under the Indian Companies Act went into liquidation and an official liquidator was appointed. He as liquidator, applied under Order 33 of the Civil Procedure Code to file a suit on behalf of the Nidhi in forma pauperis against the petitioners before us who are alleged to owe the Nidhi about Re. 8,524 under a promissory note. The allegations in the petition show that the Nidhi was bankrupt and that the only properties it had (except the subject of the suit) were worth Es. 12. The Subordinate Judge allowed the Nidhi to sue in forma pauperis and the respondents have filed this petition against the order.

(2.) The chief contention raised before us is that Order 33 of the Civil Procedure Code, does not apply to companies, corporations or other associations. It is argued that as the explanation to Order 33 Rule 1 refers to necessary wearing apparel and Rule 3 requires presentation of the petition by the "applicant in person" the order necessarily excludes petitioners who are not human beings.

(3.) We are unable to accept this contention. The word " person" is not defined in the Code of Civil Procedure and consequently the definition of the word person as including any company or association or body of individuals whether incorporated or not, in the General Clauses Act (X of 1897) would apply unless there is something repugnant to the subject or context. Order 33 of the Civil Procedure Code refers to suits by paupers and Rule 1 enacts that any suit may, subject to the provisions of the order, be instituted by a pauper and does not exclude official persons. Now a registered company or any other association may be unable to pay the court fee payable like any ordinary person and there is no reason to suppose that the legislature did not intend Order 33 to apply to such cases especially when it is remembered that the effect would be to allow debtors to escape payment and defeat on defraud the creditors and share- holders of the company. The explanation to Rule 1 no doubt states that where no court-fee is prescribed, the petitioner should not be entitled to property more than Rupees 100 "other than his necessary wearing apparel." The explanation simply allows deduction of the value of wearing apparel and can only mean that if the applicant has necessary wearing apparel he can deduct its value. We do not think it can be construed to mean that only persons who in law can possess wearing apparel, can sue. as paupers. In Cortis v. The Kent Water Works Company (1827) 7 B. and C. 314 the argument that an enactment (47, Geo. 3, Ch. Ill) did not apply to corporations as it allowed a person to appeal on entering into a recognizance which a corporation was not competent to do, was negatived by Bayley, J. who observed as follows : "But assuming that they cannot enter into a recognizance, yet if they are persons capable of being aggrieved by and appealing against a rate, I should say that that part of the clause which gives the appeal applies to all persons capable of appearing and that the other part of the clause which requires a recognizance to be entered into applies only to those persons who are capable of entering into a recognizance but is inapplicable to those who are not."