(1) Originally there were a suit and cross suit, O.S. No. 181/50 and O.S. No. 111/51, one by the Archaka and the other by the trustee of the temple of Sri Ramalingeswara Swami Varu at Satharavur, Guntur District. The Archaka claimed AC. 27-66 cents of land as his service inam; whereas, the trustees claimed that the entire extent was an endowment the temple. The Subordinate Judge's Court Bapatla, by its judgment and decree, dated 6-3-52 held that the Archaka was entitled to 8/5ths of the entire extent as remuneration for his services and that the trustee on behalf of the temple was entitled to 2/5hrs.
Against the decree, there were two appeals to the High Court of Andhra, A.S. Nos. 658/53 and 272/54, which were subsequently taken on file by this High Court. When the appeals came up for hearing the Counsel appearing for the Archaka and the trustee reported that the dispute between the parties was settled out of Court and that the appeals were not pressed. Accordingly, the appeals were dismissed by a Bench of this High Court presided over by Manohar Pershad and Kumarayya, JJ. The order of the High Court dismissing the appeals is, dated 31-10-58. On 17-8-1960, the then Executive Officer of the temple filed O.P. No. 57/60 in the Subordinate Judge's Court, Baptala, praying for the following reliefs amongst others:-
1. To set aside the decree in A.S. No. 658/53 on the file of the High Court in so far as it went against the plaintiff and to direct the defendant to deliver possession of 3/5ths of the suit lands; and (2) to direct the defendant to pay Rs.15,672 towards past profits.
(2) The court-fee payable on this plaint is Rs.3,532. It is alleged in the plaint that the appeal. A.S. No. 658/53, filed on behalf of the temple in the High Court was virtually withdrawn and dismissed and that the said decree does not bind the plaintiff. It is further alleged that the plaintiff is not possessed of sufficient means to pay the court-fee of Rs.3,532. This prayer for permission to sue as a pauper is opposed by the defendant. He pointed out that, under the previous decree, the plaintiff is admittedly entitled to 2/5ths of the suit schedule property, which, even according to the plaintiff, is worth at least about Rs. 30,000/- and that the Executive Officer could easily raise the necessary amount to pay the Court-fee. It was also pointed out that certain sums were lying to the credit of the temple.
The lower court, after considering the evidence adduced on the point, held that the plaintiff is possessed of sufficient means to pay the fee prescribed for the plaint, for the reason that admittedly he is entitled to 2/5ths of the suit property. The lower Court also pointed out that the Executive Officer did not make any enquiries as to the assets that are available. In this view, it dismissed the petition for leave to sue in forma pauperis. Hence this revision is filed by the Executive Officer on behalf the temple.
(3) It is argued by Mr. Balaiah, the learned Counsel for the petitioner, that the Court below acted illegally and with material irregularity in holing that the plaintiff is not a pauper within the meaning of Order 33 C.P.C. Reliance is placed upon the decision in V.R. Ramaswami Naidu v. Vaiyapuri Nandan, AIR 1934 Mad 653(1). In that case, in a suit for partition, the plaintiff obtained a decree for his share on condition of his paying his share of the debts and thus, the decree was a conditional one. The plaintiff sought to appeal in forma pauperis against that decree. It was held by Madhavan Nair, J., that since the plaintiff could not get his share unless he submitted to the conditions imposed, it could not be said that he was possessed of his share of the property. Further, it was pointed out that the suit and the appeal related to the entire property i.e., that his share also was the subject-matter of the suit and the appeal and had to be excluded when considering whether the applicant was a pauper within the meaning of Order 33 C.P.C. This decision has, therefore, no application to the facts of the present case where admittedly, the plaintiff is entitled to 2/5ths of the suit property, and the suit related only to the remaining 3/5ths. Having regard to the reliefs asked for in the plaint, it cannot be said that the 2/5ths share to which the plaintiff is admittedly entitled is also the subject-matter of the suit and therefore it cannot be excluded when considering the question whether the plaintiff is a pauper. I am also referred to the decision in Ponnambalam v. Panjaksharam, AIR 1949 Mad 544. In that case the plaintiff, who sought to file the suit in forma pauperis, sought to set aside a compromised decree in its entirety though, under the compromise decree, he was entitled to a share. Thus, the entire property was the subject-matter of the suit and had to be excluded. That was the view taken by Govinda Menon, J. in that decision. That decision too does not support the contention of the learned Counsel for the petitioner.
(4) On behalf of the respondent, Mr. Surya Rao relied upon the decision in Pappammal v. Seethammal, AIR 1940 Mad 754, in which it was pointed out that in a case where the plaintiff has a saleable interest in certain items of the suit property, it would be contrary to the spirit of Order 33 C.P.C., if the plaintiff could ignore that property on which he could raise money in determining whether the plaintiff had sufficient means to pay the court-fee. Similar is the view taken in Venkata Subba v. Kesava Reddi, : AIR1950Mad297 , wherein it was pointed out:
'It cannot be said that a person can be held to be a pauper without some further evidence that he was not able to raise moneys on the property in which he has got a saleable interest for the payment of Court-fee payable on his plaint, from the mere fact that such property is not in his possession.'
This decision in my view, applies to the facts of the present case. The plaintiff admittedly has a saleable interest in 2/5ths of the suit property. The plaintiff's right is not at all denied by the defendant though he is in possession of that share also. The Executive Officer himself as P.W. 1 admitted that he could raise money on the security of the 2/5ths share. The decision of the Court below is, in my opinion, right.
(5) The revision petition is, therefore, dismissed with costs. Time for payment of the Court-fee - Ten weeks from today.
(6) Petition dismissed.