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Manglu Chhatar and ors. Vs. Maheswar Bhoi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 136 of 1978
Judge
Reported inAIR1981Ori153; 51(1981)CLT449
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60(1) - Order 33, Rule 2
AppellantManglu Chhatar and ors.
RespondentMaheswar Bhoi and ors.
Appellant AdvocateR.C. Patnaik, ;P.K. Mishra and ;M.J. Rao, Advs.
Respondent AdvocateS.C. Mohapatra and ;S. Rath, Advs.
DispositionAppeal allowed
Excerpt:
.....co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - this provision clearly says that the subject-matter of the suit is not to be considered as assets that would enable the party to pay the court-fees......per day as wages. the trial court has found that as the plaintiffs are living separately, earning daily wages and are possessed of weaving materials, they could combinedly pay the court-fees. this appeal is directed against the aforesaid order.2. plaintiffs have adduced evidence to the effect that they being weavers, they earn daily wages. it is contended on behalf of the olaintiffs-appellants that according to the provisions of order 33, rule 1, explanation l (a), the daily wages of a labourer cannot be taken into consideration to come to a finding that he is able to pay court-fees. this provision says, a person is an indigent person if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit.) to.....
Judgment:

N.K. Das, J.

1. The plaintiffs filed a suit for damages against the defendants. The requisite court-fee payable is Rupees 873.00. Plaintiffs filed a petition for leave to sue as indigent persons inasmuch as they are not able to pay the court-fees and are not possessed of assets so as to enable them to pay the court-fees. This application was challenged by the defendants. The trial Court has rejected the petition filed by the plaintiffs for leave to sue as indigent persons on the ground that they being weavers have got their weaving materials and P. W. 1 has also said that the petitioners are daily labourers and they get Rs. 3 to Rs. 4. each per day as wages. The trial Court has found that as the plaintiffs are living separately, earning daily wages and are possessed of weaving materials, they could combinedly pay the court-fees. This appeal is directed against the aforesaid order.

2. Plaintiffs have adduced evidence to the effect that they being weavers, they earn daily wages. It is contended on behalf of the olaintiffs-appellants that according to the provisions of Order 33, Rule 1, Explanation l (a), the daily wages of a labourer cannot be taken into consideration to come to a finding that he is able to pay court-fees. This provision says, a person is an indigent person if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit.) to enable him to pay the fee prescribed by law for the plaint in such a suit. This provision clearly says that the subject-matter of the suit is not to be considered as assets that would enable the party to pay the court-fees. So also the property which is exempt from attachment is not to be considered as assets of the party so as to enable him to pay the court-fees. Explanation I (a) is clear on the point that not only the subject-matter of the suit but also the properties which are exempted from attachment in execution are also not to be taken into consideration.

3. Section 60 of the Code of Civil Procedure gives a list of the properties exempted from attachment. Proviso to Sub-section (1) of Section 60 provides as follows;--

'Provided that the following particulars shall not be liable to such attachment or sale:

(b) tools of artisans.....

XX XX XX (h) the wages of labourers and domestic servants, whether payable in money or in kind.'

The aforesaid provisions of the Code of Civil Procedure make it clear that the tools of artisans are exempted from attachment. In the instant case, according to the finding of the trial Court, the appellants are possessed of tools and weaving materials and they get daily wages. Both these items are covered under the proviso to Section 60(1) of the Code of Civil Procedure. There is no other evidence adduced from the side of the defendants to show that the petitioners are possessed of any other property. Therefore, there is no dispute about the fact that the appellants are all weavers and their weaving materials consist of tools of artisans. These properties are not to be taken into consideration to find out whether they will be able to pay the court-fee. So also the daily wages they get cannot be taken into consideration for the aforesaid purpose.

On the aforesaid analysis, it should be held that the appellants are indigent persons and therefore they should be allowed to sue as indigent persons.

4. In the result, the appeal is allowed. The impugned order of the trial Court is set aside and the appellants are granted leave to prosecute the suit as indigent persons. In the circumstances of the case, there will be no order as to costs.


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