1. Defendants 3 and 5 who are the legal representatives of the first defendant in O. S. No. 97 of 1968, on the file of the Court of the District Munsif, Kallakurichi, who lost before the courts below, are the appellants herein. Respondents 1 and 2, the plaintiffs, instituted the suit for declaration of title to, and recovery of possession of the suit properties after setting aside two sale deeds dated 25-4-1955 marked as Ex. B-3 and 4-8-1959 marked as Ex. B-4, executed by the second defendant, mother of the plaintiffs, on her own behalf and as guardian of the plaintiffs, in favour of the first defendant. There is no dispute about the fact that the properties were settled on the secere defendant and the plaintiffs. Equally there is no dispute about the fact that the second defendant executed the two sale deeds, Ex. B-3 for a consideration of Rs. 600 and Ex. B-4 for a consideration of Rs. 1800 purporting to act on her behalf as well as on behalf of her minor children. The suit was instituted for canceling these two sale deeds and for recovering possession of the properties on the ground that the sale deeds were not binding on the minors. Both the courts below found that the sale deeds were executed for binding purposes, but still they held that Ex. B-4 sale deed would not be binding on the plaintiffs, while Ex. B-3 sale deed would be binding. The reason for holding the Ex. B-4 sale deed would not be binding on the minors was that on the date of the sale deed the Hindu Minority and Guardianship Act of 1956 was in force, and under Section 8 of that Act, the guardian had no right to dispose of the minors' interest without the permission of the court. It is on this basis the courts below held that Ex. B-4 would not be binding, and they passed a preliminary decree for partition of the plaintiffs' two-third share in items 1 to 3, viz., those items covered by Ex. B-4 sale deed. The first defendant succeeded with regard to Ex. B-3 sale deed. Against the decree passed by the trial court with regard to Ex. B-4 sale deed, the appellants herein preferred an appeal. The learned Subordinate Judge of Cuddalore, by judgment dated 12-7-1974, dismissed the appeal. Hence the present second appeal by defendants 3 and 5.
2. The learned counsel for the appellants put forward three contentions to challenge the decrees of the courts below; the first is that prior to the institution of the present suit, there was an original petition for permission of the court to sue in forma pauperis and that petition, viz., O. P. No. 36 of 1967, was dismissed though for default, with costs in favour o the first defendant. Consequently under Order XXXIII, Rule 5 C.P.C. without his costs of that petition being paid, this suit should not have been entertained. The second contention is that the first plaintiff having been born on 3-12-1945 and the suit having been instituted on 16-12-1967, the suit was barred by limitation not merely with regard to the first plaintiff but with regard to the second plaintiff also, as the cause of action was the same. The third contention is that when the courts below granted a decree in favour of the plaintiffs, having regard to the finding that the purpose for which the sale deed was executed was binding on the plaintiffs, the court below should have directed the plaintiffs to refund two-thirds share of the consideration for Ex. B-4.
3. As far as the first contention is concerned, I am clearly of the opinion that the same is unsustainable. Order XXXIII, Rule 15 C.P.C. reads as follows--
'An order refusing to allow the applicant to sue as an indigent person shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that the plaint shall be rejected if he does not pay, either at the time of the institution of the suit or -within such time thereafter as the court may allow, the costs, if any, incurred by the State Government and by the opposite party in opposing his application for leave to sue as an indigent person.'
Consequently this provision will be attracted only if the earlier petition was dismissed on merits. The word 'refusing' occurring in Order XXXIII C.P.C, supports this inference. Independent of this, there is a Bench decision of this court in Pole peddi Krishnamurthi v. Polepeddi Ramayya : AIR1926Mad875 . In that judgment, it was held--
'The principle underlying Rule 15 appears to be that of res judicata viz., that the court will not entertain a second application when the first has been dismissed on the ground that the petitioneris not entitled to sue as a pauper. Any order passed under Rule 5 (a) is of a summary nature based on the petition itself or on facts which are apparent at the time of presentation of the petition. For instance, if the petition does not contain a schedule of property or if it is presented by the alleged pauper's agent, it has to be rejected, and if we are to apply the ruling of the Calcutta High Court, it can never be represented. This goes a good deal further than the principle of res judicata for it gives the force of res judicata to a summary order passed without enquiry or contest and consequently, I think it is doubtful whether that is the intention of the Legislature. It is noticeable that Rule 15 refers to an order 'refusing to allow an applicant to sue as a pauper' and these words are the identical words used in Rule 7 Clause (3) and it is clear that Rule 15 applies to such an order. I can see no reason for extending it to include an order rejecting an application when such order does not either in terms, or by implication, refuse to allow an applicant to sue as a pauper. For instance the rejection and return of a petition presented by an agent can hardly be said to amount to a refusal to allow the petitioner to sue as a pauper for there is no provision specifically prohibiting its representation by the pauper himself. In the present case the order rejecting the application is very specific. The District Munsif states that he has to reject the petition but that he ought not to be understood as expressing any opinion on the question whether the plaintiff is a pauper or not. There is clearly no adjudication on the merits by this order. I am therefore of opinion that such an order is not a bar to the subsequent presentation of a petition based on the same right to sue, The view was adopted by my learned brother in Chinnammal v. Papathiammal : AIR1925Mad986 which was a case where the first petition had been dismissed for default. I would therefore hold that when there has been no enquiry under Rule 6 and a consequent order under Rule 7 the order rejecting the application is not a bar to a second application.'
In view of this judgment it is clear, that Order XXXIII, Rule 15 C.P.C. applies only to a case where a prior application for permission to sue in forma pauperis was rejected on merits, and not to a case where the application was dismissed for default, as in the present case.
4. The second contention of the learned counsel for the appellants, as I pointed out already, relates to the suit having been barred by limitation, on the ground that the first plaintiff was born on 3-12-1945 and the suit was instituted on 16-12-1967. However, the courts below, on examination of the evidence placed before them, have come to the conclusion that the first plaintiff was born not on 3-12-1945, but on 6-6-1947, and that therefore the suit filed on 6-12-1967 was within time. This finding is amply supported by evidence and the same will have to stand.
5. As far as the third point is concerned, at no stage of the proceedings, the appellants ever put forward the contention that in the event of it being held that Ex. B-4 sale deed is not binding on the plaintiffs, the plaintiffs should be called upon to refund two-thirds of the consideration under Ex. B-4. It may be that the one-third of the properties, the share of the mother, the second defendant, sold under Ex. B-4 was worth entire consideration; and that may be the reason why the appellants had not put forward any such claim. Under these circumstances, I am unable to entertain that claim put forward for the first time in the second appeal.
6. Hence the second appeal fails and is dismissed. There will be no order as to costs.