Basheer Ahmed Sayeed, J.
1. This Civil Revision Petition is filed against, the Order of the learned Sixth Assistant City Civil Judge, Madras, refusing to allow the petitioners to sue in forma pauperis in a suit brought by the petitioners for redemption of the mortgaged property.
2. The property is said to have been purchased for Rs. 1,750. Long prior to the sale it was mortgaged by way of simple mortgage and the amount due under the same with interest came to Rs. 800 on the date of suit. There seems to be dispute as to what exactly is the amount due to the mortgagee under the suit mortgage. Whatever that be, it has to be gone into and decided by the Court when disposing of the suit. But so far as the suit itself is concerned it is one for redeeming the mortgage, that is to say, paying off the amount due under the mortgage and releasing the property from the mortgage debt.
3. The learned City Civil Judge has held that since the mortgaged property is subject to encumbrance only to the extent of Rs. 800, the equity of redemption is worth Rs. 950 and therefore on this value of the equity of redemption further money could be raised to enable the petitioners to pay the Court-fee due to the Government on the plaint. It may be noted that the Government Pleader has already reported that the petitioners are paupers. On the ground that the equity of redemption is worth Rs. 950, the learned City Civil Judge has held that the plaintiffs-petitioners have sufficient means to pay the Court-fee due to the Government and rejected the petition for leave to sue in forma pauperis.
4. Mr. Damodaram, appearing on behalf of the petitioners, contends that the learned City Civil Judge has gone wrong and has acted against the express provisions of Order 33, Rule 1, of the Code of Civil Procedure, wherein it has been stated that in assessing the means at the disposal of an applicant to pay the Court-fee on any plaint, the subject-matter of the suit itself should not be taken into account but must be excluded from computation. The relevant part of the Explanation to Rule 1 of Order 33 is that a person is a pauper
where no fee is prescribed when he is not entitled to property worth one hundred rupees other than his Wearing apparel and the subject-matter of the suit.
It is plain, therefore, that the subject-matter of the suit has to be excluded when declaring whether a person is a pauper or not. Learned Counsel for the petitioners contends that the subject-matter of the suit in this case is the very property or the equity of redemption therein which the petitioners are seeking to get back released from the encumbrance thereon. But the learned Counsel for the respondent would contend that the subject-matter of the suit in a suit for redemption is not the property or the right of the petitioners to get back the property free from the encumbrance, but the amount of the mortgage debt payable to the mortgagee. It is difficult for me to agree with the contention of the learned Counsel for the respondent that in a suit for redemption of the mortgaged property the subject-matter of the suit is the amount payable to the mortgagee. I think the subject-matter of the suit is the right of the mortgagor to get back the property into his possession on paying the amount due to the mortgagee.
5. Such being the case, under the latter part of the Explanation to Rule I of Order 33, the subject-matter of the suit, viz., the equity of redemption which may be worth Rs. 950, will have to be excluded. There is no meaning in saying that when the mortgagor approaches the Court to redeem the property from the mortgagee he should go in for a sale or otherwise encumber the equity of redemption itself to raise the necessary funds to pay the Court-fee due to the Government. If he were to sell the equity of redemption, it is not necessary for him to go to a Court of law for: redeeming the mortgage. The mortgage could as well be redeemed by other means than by instituting a suit in a Court for redemption. That the subject-matter of the suit should be excluded when the pauperism of the petitioner has to be determined has been held by Cornish, J., in Manicka Chetty v. Narayanasami Naidu : (1933)65MLJ277 . To similar effect is the decision of Madhavan Nair, J. (as he then was) in Ramaswami Naidu v. Vaiyapuri Nadan (1934) 67 M.L.J. 581, Ramesam, J., has held the same opinion in Thanu Pillai v. Nellathayammal A.I.R. 1934 Mad. 526, following the test laid down in Sundarathammal v. Paramaswami Asari : AIR1933Mad883 , by Pakenham Walsh, J. I am inclined to agree with the rulings in these decisions and hold that it cannot be held in this case that the plaintiffs' petitioners have sufficient means to pay the Court-fee due to the Government. The order of the learned City Civil Judge is therefore set aside and the petitioners will be granted leave to file the suit in forma pauperis. The costs of this Civil Revision Petition will be costs in the cause.