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A.L.A.C.T. Solayappa Chetty Vs. R.M.M.L. Lakshmanan Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1920)38MLJ146
AppellantA.L.A.C.T. Solayappa Chetty
RespondentR.M.M.L. Lakshmanan Chetty and ors.
Cases Referred and Thompson v. The Calcutta Tramway Company I.L.
Excerpt:
- - we have read through the appeal memorandum and the judgment and the decree appealed from, including in the word 'judgment' the order of the 20th april 1914, and we have also taken the assistance of the vakils on both sides to understand what we have read, and we are not satisfied that the decree is contrary to law or to any usage having the force of law or is otherwise erroneous or unjust......appeal no. 278 of 1914 was filed in the first instance against the so called third preliminary decree passed on the 20th of april 1914 in the ramnad subordinate judge's court and the appeal was presented on the 3rd of august 1914. the appeal has since been converted by an order of this court dated 6th december 1918 into an appeal against the final decree passed by the ramnad court on the 29th october 1914 which followed the judgment of the same date (29-10-1914), the judgment or order passed (as third preliminary judgment) on the 20th of april 1914 being treated as part of the final judgment of the 29th october 1914. the petitioner (appellant) was directed, on the 6th december 1918 to pay the. additional court fee within two months, but he has not yet paid the same though it is.....
Judgment:
ORDER

1. C.M.P. No. 1655 of 1919 is an application, under Section 151 of the Code of Civil Procedure praying that the Petitioner may be allowed to continue the appeal as a pauper, (the appeal having been filed long ago as an ordinary appeal in the regular course) so that the petitioner may be exempted from payment of the additional court fee of Rs. 2,900 and odd which he would have to pay if the appeal was prosecuted further as an ordinary appeal.

2. Appeal No. 278 of 1914 was filed in the first instance against the so called third preliminary decree passed on the 20th of April 1914 in the Ramnad Subordinate Judge's Court and the appeal was presented on the 3rd of August 1914. The appeal has since been converted by an order of this Court dated 6th December 1918 into an appeal against the final decree passed by the Ramnad Court on the 29th October 1914 which followed the judgment of the same date (29-10-1914), the judgment or order passed (as third preliminary judgment) on the 20th of April 1914 being treated as part of the final judgment of the 29th October 1914. The petitioner (appellant) was directed, on the 6th December 1918 to pay the. additional court fee within two months, but he has not yet paid the same though it is nearly nine months since that order was passed. He put in several applications for extensions of time and the latest of those applications is C. M. P. No. 1063 of 1919 which we may at once dismiss, as he is unable to pay the balance of court fees and as it is therefore not pressed.

3. The present application C.M.P. No. 1655 of 1919 was filed on the 14th July 1919 and it is not disputed that the petitioner is a pauper. This application does not fall under Order 44 Rule 1 of the Civil Procedure Code, as the appeal has already been filed as an ordinary appeal, and hence the petitioner has been obliged to invoke our powers under Section 151 of the Code of Civil Procedure. The first question, therefore, is whether we have got jurisdiction under that section to allow a person to continue an appeal as a pauper. The decisions in Nirmul Chandra Mookerjee v. Doyal Nath Bhattacharya I.L.R (1877) Cal. 130. Revji Patil v. Sakharam I.L.R (1884) Bom. 615 and Thompson v. The Calcutta Tramway Company I.L.R (1893) Cal. 319 support the petitioner's contention that we have got the power to allow the prosecution of an appeal to be continued in forma pauperis. There may, no doubt, result an anomaly in holding that such a power exists because, while under Article 170 of the Limitation Act a person who puts in an application for leave to appeal as a pauper has got only one month's time from the date of the decree appealed from, an application under Section 151 for permission to continue an appeal as a pauper would be probably governed by the general Article 181: 'three years for applications for which no period of limitation is provided elsewhere.' It seems, again not advisable to express a final opinion on this question involving liability for payment of court fees due to Government (and in which the Government therefore is interested) without giving notice to and without hearing the arguments of the Government Pleader. Assuming for the the sake of argument that we have got the power, it is clear that we should exercise our discretion subject to the conditions imposed by the proviso to Order 44 Rule 1 on a court to which an application is made by a person to allow him to appeal as a pauper; that is, unless from a perusal of the appeal memorandum and of the judgment and decree appealed from there is reason to think that the decree is contrary to law, or to some usage having the force of law, or is otherwise erroneous or unjust, the court is bound to reject the application. We have read through the appeal memorandum and the judgment and the decree appealed from, including in the word 'judgment' the order of the 20th April 1914, and we have also taken the assistance of the Vakils on both sides to understand what we have read, and we are not satisfied that the decree is contrary to law or to any usage having the force of law or is otherwise erroneous or unjust. We shall therefore, dismiss this petition also. There will be no order as to costs in either of the petitions.

4. As the extension of time to pay court-fees has expired the appeal will stand rejected with costs.


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