JAGANNATHPURI Vs. NATHOO

JUDGEMENT

(1.) 1. The facts of this case are sufficiently clear from the judgment of the lower Court. The only question with which I am concerned is whether the payment of court-fees by the present plaintiff-appellant on 1st October 1S24 has retrospective effect, or whether the suit should be deemed to have been instituted on the actual date of payment of court-fees. The plaintiff-appellant's contention is that he is entitled to exclusion of time from 18th June 1923 to 1st October 1924, which time is said to have been spent in proceedings in the Court of the Second Subordinate Judge first class, taken with a view to being allowed to sue as a pauper. The said application for leave to sue as a pauper was dismissed by the Court in question on 22nd February 1924, but thereafter the applicant asked the Court to keep the case pending as he intended applying for revision to this Court against the dismissal of the application. Meanwhile, the application was dismissed and the Court gave time until 1st October 1924 for payment of court-fees. There can be no question in the present case but that the applicant was able to pay court-fees and that his application to sue as a pauper was one made in bad faith.

(2.) AN argument has been addressed to me in this Court to the effect that the provisions of Section 149, Civil P.C., apply to the case. It is urged that the payment of court-fees made on 1st October 1924, in effect, validated the original application for leave to sue as a pauper and the decision in Achut Ramachandra v. Nagappa Bab Balgaya [1914] 38 Bom. 41 has been referred to in this connexion. I am wholly unable to accept the view that Section 149, Civil P.C., has any application to the facts of the present case. No suit had been instituted when the application for leave to sue as a pauper was filed, that was a preliminary proceedings as laid down in Order 33, Civil P.C.