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Muhammad Farzand Ali Vs. Rahat Ali and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in45Ind.Cas.29
AppellantMuhammad Farzand Ali
RespondentRahat Ali and ors.
Excerpt:
civil procedure code (act v of 1908), order xliv, rule 1 - appeal in forma pauperis--application rejected--applicant, whether entitled to pay court-fee on appeal. - - this is clearly wrong......filed a petition requesting to be allowed to deposit fees and to prosecute his appeal. his appeal was dismissed on the 17th of february last. i reject his petition.' the court, therefore, refused to exercise its jurisdiction in not allowing the court-fees to be paid, under theimpression that the appeal had been dismissed on the 17fh of february. this is clearly wrong. the appeal had never been dismissed. the memorandum of appeal is still before the court. on the 17 february what was rejected was the application for permission to appeal in forma pauperis. we think that in the circumstances the applicant should have been allowed to pay the court fees if he so wished, and we allow this application and direct the lower court to allow this to be done. any question of limitation that.....
Judgment:

1. The present applicant brought a suit in forma pauperis for possession of certam property which had been mortgaged. He sought to recover possession without payment of any sum of money. On the 15th of July 1916 the Court gave a decree for redemption of the mortgage on payment of Rs. 4,301.3.2. On the 19th of August he filed an application under Order XLIV, Rule 1, together with a memorandum of appeal as directed therein asking for permission to be allowed to appeal in forma pauperis. The Appellate Court directed farther enquiry by the Court of first instance into the alleged pauperism and on the 15th of February, that Court reported that the applicant was a pauper. On the 17th of February 1917, the Court then took action under the proviso to Rule 1 of Order XLIV. It examined the judgment and the decree and rejected the application under that proviso. Information of this was sent to the applicant by post and he received it on the 17th of March 1917. On the 20th of March 1917 the applicant filed a petition stating that he had received a post-card from the Court intimating that his application for permission had been rejected. He, therefore, prayed that he might be permitted to pay the Court-fee on his memorandum of appeal. On this the lower Court passed the following order: 'Yesterday the applicant filed a petition requesting to be allowed to deposit fees and to prosecute his appeal. His appeal was dismissed on the 17th of February last. I reject his petition.' The Court, therefore, refused to exercise its jurisdiction in not allowing the Court-fees to be paid, under theimpression that the appeal had been dismissed on the 17fh of February. This is clearly wrong. The appeal had never been dismissed. The memorandum of appeal is still before the Court. On the 17 February what was rejected was the application for permission to appeal in forma pauperis. We think that in the circumstances the applicant should have been allowed to pay the Court fees if he so wished, and we allow this application and direct the lower Court to allow this to be done. Any question of limitation that may arise will be decided by the Court in the usual way according to law. The Court below will fix a time within which the applicant will pay the Court-fees. In regard to the costs of this application, they will be costs in the cause and will abide the result.


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