Pandrang Row, J.
1. This is an appeal from the decree of the Subordinate Judge of Cocanada dated 13th March, 1933, allowing an appeal from the decree of the District Munsiff of Peddapuram dated 7th December, 1931, in E.A. No. 642 of 1931, an application under Order 21, Rule 97 of the Civil Procedure Code, for removal of obstruction caused by the respondents and for delivery of the property on the ground that the respondents had purchased the property pendente lite from the first defendant in O.S. No. 278 of 1919, the first petitioner being the plaintiff therein. The transfer, in question was dated 30th April, 1919, whereas the suit (O.S. No. 278) was instituted on 24th March, 1919, as an application for leave to sue as a pauper.
2. The sole question that is argued in this appeal is that the transfer in question (Ex. II) was not a transfer during the pendency of O.S. No. 278 because, though the application for leave to sue as a pauper was filed prior to the transfer, nevertheless the application was not actually registered as a suit till first August, 1919. Before the recent amendment of the Transfer of Property Act, Section 52 was worded differently, but the amendment does not appear to have made any change in the law. The old section provided that:
During the active prosecution in any Court of a contentious suit or proceeding in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto....
3. The present section provides that:
During the pendency in any Court of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred....
4. And the explanation which is newly introduced provides that the pendency, for the purpose of this section of a suit, or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction. It is not denied that the immoveable property in question was specifically in issue in O.S. No. 278. It is, however, contended that it was not in issue during the stage of the inquiry into the pauperism of the plaintiff-applicant as the only question that was to be inquired into at that time was whether he was a pauper or not. I do not think this makes any real difference. The procedure prescribed for a pauper who wants to file a suit in respect of any immoveable property is that he should file an application for leave to sue as a pauper and that such application should contain all the particulars that a plaint ought to contain and, when the application is allowed, it shall then be numbered and registered and shall be deemed to be the plaint in the suit - Vide Order 33, Rule 8. The explanation to Section 3 of the Limitation Act also provides that a suit is instituted in the case of a pauper when his application for leave to sue as a pauper is made. It cannot be said that the Limitation Act deals with entirely different matters and the explanation referred to above can in my opinion be relied upon for ascertaining when a suit by a pauper must be deemed to have been instituted in respect of immoveable property under Section 52 of the Transfer of Property Act.
5. A number of cases have been quoted but the only one that can be said to be exactly in point is Ambika Partap Singh v. Dwaraka Prasad I.L.R. (1907) 30 All. 95. The Bench which decided that case observes as follows:
Mr. Sundar Lal, on behalf of the respondents, contended that the section of the Act in question has no application. His argument was that until the application of the defendant-appellant for leave to sue in forma pauperis had been granted, that is, on the 12th of May 1894, there was no suit pending within the meaning of that section, and he relied upon Section 410 of the Code of Civil Procedure; which declares that when an application to sue in forma pauperis is granted, and has been numbered and registered, it shall then be deemed the plaint in the suit, and he argued that there was no suit pending at the date of the execution of the mortgage inasmuch as the appliation for leave to sue had not at that time been numbered and registered. We cannot agree with him in this contention. It appears to us that so soon as the defendant filed his application for leave to sue, there was a contentious suit, or at least a contentious proceeeding, pending within the meaning of the section, and it is clear that that suit or proceeding was at the time being actively prosecuted. In this connection we may cite the ruling of their Lordships of the Privy Council in the case of Faiyaz Hussain Khan v. Prag Narain I.L.R. (1907) 29 All. 339 to the effect that where a suit is contentious in its origin and nature, it is not necessary that the summons should have been served in the suit in order to make it 'contentious' within the meaning of Section 52. Mr. Choudhri relied upon the explanation to Section 4 of the Indian Limitation Act as supporting his proposition that the suit is instituted in the case of a pauper when the application for leave to sue as a pauper is filed. This section, no doubt, gives support to his argument, but we think that there is no need to fall back upon it in view of the clear and specific language of Section 52 of the Transfer of Property Act.
6. It is argued by the appellant's Advocate that these observations must be deemed to be obiter dicta because the decision in the case was based on another ground also and could be based on the other ground alone given in the judgment. Even assuming that these observations are obiter, I am prepared to adopt and follow them.
7. The other cases quoted do not really have a bearing on the point that arises in this appeal. The policy which underlies Section 52 is clear, viz., that, once litigation has been launched, any transfer subsequent thereto must be subject to the result of that litigation. Bearing this in mind, there is no reason in my opinion to make any distinction between suits filed by well-to-do persons and those filed by paupers; for it cannot be said that the legislature intended to subject a pauper plaintiff to a disability from which a well-to-do litigant would be exempt. The law prescribes a certain procedure to be adopted by a pauper litigant who desires to file a suit and this procedure requires the filing of an application which, if the pauperism is established, is to be treated as a plaint, and the filing of the application has to be treated as the filing of the suit itself for purposes of limitation. There is no reason to make any distinction in the case of suits filed by paupers relating to immoveable property between the application for leave to sue as a pauper and the plaint itself. The two are to be deemed one and the same when the application for leave is granted. Notice of the application goes to the other side just as notice of the suit though, before any issue relating to the immovable property is decided, the preliminary issue of pauperism has to be decided and found in the affirmative. I am of opinion that the finding of the learned Subordinate Judge is correct, viz., that Ex. II must be regarded as subject to the decision or decree in O.S. No. 278. It follows from this that the appeal must fail and it is accordingly dismissed with costs.
8. Leave to appeal has been asked for but I see no sufficient reason to grant it.