1. The petitioner on the 7th October, 1931, filed an appeal in forma pauperis. On the 12th October, 1931, the District Court ordered notice to the Government Pleader and to the respondents. Notices were accordingly taken. The Government Pleader did not oppose the application but various of the respondents filed counters. Eventually the case came on for hearing before a successor of the learned District Judge who had dealt with the case so far and on the 11th March, 1932, an order was passed dismissing the application. The ground stated for so dismissing it was that the judgment and decree did not comply with the terms of the proviso to Order 44, Rule 1, Civil Procedure Code; in other words, that there was no reason to think that the decree was contrary to law or was otherwise erroneous or unjust.
2. I do not think that the learned District Judge was justified, at the stage which had been reached, in disposing of the petition under the terms of that proviso. The proviso itself requires that the Court shall reject the application unless, upon a perusal of it and of the judgment and decree, it finds the conditions laid down are satisfied; and that means, I think, and is always in practice taken to mean, that the very first step in dealing with such an application is to peruse the records and if necessary to reject the petition without issuing notice to any of the parties interested. It is impossible to contend on the terms of the proviso that the Court would be justified in issuing notice in order to make up its mind whether so to reject the application. Accordingly it must, I think, be presumed that when the first learned Judge who dealt with the application directed the issue of notice, he had applied his mind to this provision and had decided not to reject the appeal under it. It could not therefore be open to his successor to reconsider this matter and come to a contrary conclusion. He should have taken the application up at the stage where it had been dropped by his predecessor and have continued it by enquiring into the pecuniary circum stances of the petitioner. There are several Patna cases which support this view. I may refer to Raghunath Prasad Sahu v. Mussammat Rampiari Kuer I.L.R. (1927) 6 Pat. 687 which itself is based upon an earlier case, and Mt. Bibi Sogra v. Radha Kishun : AIR1929Pat27 . In this latter case the principle is expressed that 'the applications having been admitted it has to be presumed that the Court which admitted I the applications and ordered issue of notice was satisfied that the conditions requisite for the issue of notice were present, namely, that the Court saw good reason to think that the decree Vas contrary to law or to some usage having the force of law'. I agree with this view and accordingly I set aside the order of the Lower Court and direct it to restore the original petition to file and proceed to dispose of it in the manner indicated. The respondents will pay the costs of this petition.