1. This is an appeal against an order passed by the Joint First Class Subordinate Judge at Ahmedabad in execution proceedings. The decree sought to be executed was obtained by a step-mother against her step-son for maintenance, and it provided as follows:
Defendant to pay Rs. 600 to the plaintiff per year for the plaintiff's maintenance from the date of suit. The said amount will be payable in two sums as follows:- Rs. 300 on May 1 of each year : Rs. 300 on November 1 of each year.
The amount of future maintenance due up to November 1, 1936, will be paid up immediately.
2. In the darkhast the plaintiff-decree-holder claimed maintenance from the date on which she had made an application to file her suit in forma pauperis. That application was filed on March 30, 1935, and was granted on October 31, 1936. The judgment-debtor contended that the suit was really instituted on the date on which the application was granted and the plaint was ordered to be registered. He, therefore, contested the decree-holder's claim for the amount of maintenance for the period between the date of the filing of the application for permission to sue as a pauper and the date on which the application was actually granted. The learned Subordinate Judge held that the suit should be deemed to have been instituted on the day on which the application for permission to sue in pauperism was made; and that is the only question in issue in this appeal.
3. Section 26 of the Civil Procedure Code, 1908, provides that 'every suit shall be instituted by the presentation of a plaint;' and Order IV, Rule 1, says that 'every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.' Rule 2 of that Order says that 'the Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits.' Order XXXIII, Rule 8, provides:
Where the application (for permission to sue in pauperism) is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner.
4. These sections and rules are to be interpreted in order to determine when the suit should be regarded as having been filed. The decree expressly grants maintenance 'from the date of suit.' It is pointed out that the suit can be registered only after the application for permission to sue in pauperism is granted under Order XXXIII, Rule 8, of the Civil Procedure Code, and, therefore, it must be deemed to have been instituted on that day. Till then no suit was in existence as can be seen from the fact that no order for attachment before judgment could be passed, as, held in Purna Chandra v. Tata Prosad (1916) 25 C.L.R. 159. The learned advocate for the appellant also relies on the rulings in Janardan Vithal v. Anant Mahadev I.L.R. (1883) 7 Bom. 373 and Dwarkanath Narayan v. Madhavrav Vishvanath I.L.R. (1886) 10 Bom. 207. But these cases merely lay down that an application to sue in forma pauperis is deemed the plaint in the suit after the Court has granted permission under Section 410 (now Order XXXIII, Rule 8). That position is not disputed. But what Order XXXIII, Rule 8, says is that as soon as the application is granted, the application itself is to be deemed as the plaint in the suit, and, therefore, it is the date of the filing of the application that should be regarded as the date of the filing of the suit. Even in the case of ordinary suits when the plaint is presented under Order IV, Rule 1, it is not often immediately registered. Several questions may arise which require to be decided before the suit is registered under Order IV, Rule 2. Thus, for instance, Court-fee stamp may be regarded as insufficient and it may have to be determined whether the plaint is properly stamped. After that question is considered and decided, either the plaintiff would be called upon to pay the deficit Court-fees, or if the Court-fee paid is found sufficient, the suit may be ordered to be registered. But even if the suit be actually registered long after the plaint was filed, still the suit is to be deemed as instituted on the date on which the plaint was filed and not on the date on which the suit was registered. Even in the case of an application for permission to sue as a pauper, if that application is rejected, it is not to be deemed as a rejection of the plaint : Jagadeshwaree Debee v. Tinkarhi Bibi I.L.R. (1935) Cal. 711. It is open to the Court to grant permission to the applicant under Section 149 of the Civil Procedure Code to pay the deficit Court-fees, and the suit may be ordered to be registered when such Court-fees are paid. In that case the original application itself will be treated as the plaint and the suit as having been instituted on the date on which the application was presented : Bank of Bihar Limited v. Sri Thakur Ramchandraji Maharaj (1829). The explanation to Section 3 of the Indian Limitation Act makes it clear that in the case of a pauper the suit is to be deemed to be instituted, on the date on which the application for permission to sue as a pauper is filed. The question as to the date on which the plaint is to be deemed to have been filed when the application to sue in forma pauperis is rejected arose directly in the case of Kaman Mada v. Malli : AIR1926Mad159 . In that case the scale of Court-fees was increased between the date on which the application for leave to sue in forma pauperis was filed and the date on which it was rejected, and time was granted for the payment of the requisite Court-fees, and it was held that the plaint should be deemed to have been filed when the application for leave to sue as a pauper was filed and that the Court-fees should be levied on the scale then existing.
5. I, therefore, hold that in this case also the suit should be deemed to have been instituted on March 30, 1935, when the application for leave to sue as a pauper was presented, and that the order of the lower Court is correct.
6. The appeal is dismissed with costs.