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A.L.A.C.T. Solaiyappa Chetty Vs. R.M.M.L. Lakshmanan Chetty - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in54Ind.Cas.761
AppellantA.L.A.C.T. Solaiyappa Chetty
RespondentR.M.M.L. Lakshmanan Chetty
Cases Referred and Thompson v. Calcutta Tramway Co. Ltd.
Excerpt:
..... - this application does not fall under order xliv, rule 1, civil procedure code, as the appeal has already been failed as an ordinary appeal and hence the petitioner has been obliged to invoke our powers under section 151, civil procedure code. we have read through the appeal memorandum and the judgment and 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 other-wise 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 april 1914 in the ramnad subordinate judge's court and the appeal was presented on the 3rd of august 1914. the appeal has been since converted by an order of this court, dated 6th december 19l8, into an appeal against the final decree passed by the ramnad court on the 29th of october 1914, which followed the judgment of the same date (29th october 1917), the judgment or order passed (a third preliminary judgment) on the 20th of april 1914 being treated as part of this final judgment of the 29th of october 1914. the petitioner (appellant) was directed on the 6th of december 1918 to pay the additional court-fee within two months, but he has not yet paid the same.....
Judgment:
ORDER

1. Civil Miscellaneous Petition 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 an 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 April 1914 in the Ramnad Subordinate Judge's Court and the appeal was presented on the 3rd of August 1914. The appeal has been since converted by an order of this Court, dated 6th December 19l8, into an appeal against the final decree passed by the Ramnad Court on the 29th of October 1914, which followed the judgment of the same date (29th October 1917), the judgment or order passed (a third preliminary judgment) on the 20th of April 1914 being treated as part of this final judgment of the 29th of October 1914. The petitioner (appellant) was directed on the 6th of 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 extension of time and the latest of those applications is Civil Miscellaneous Petition No. 1063 of 1919, which we may at once dismiss as he is unable to pay the balance Court-fees and as it is, therefore, not pressed.

3. The present application in Civil Miscellaneous Petition No. 1655 of 1919 was filed on the 14th of July 1919, and it is not disputed that the petitioner is a pauper. This application does not fall under Order XLIV, Rule 1, Civil Procedure Code, as the appeal has already been failed as an ordinary appeal and hence the petitioner has been obliged to invoke our powers under Section 151, Civil Procedure Code. 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 Bhuttacharjee 2 C.P 130; Revji Patil v. Sakharam 8 B.P 615 and Thompson v. Calcutta Tramway Co. Ltd. 20 C.P 319 support the petitioner's contention that we have got the power to allow the prosecution of an appeal to be continued in forma paupeirs. 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 the payment of Court-fees due to Government (in which the Government, therefore, is interested) without giving notice to and without bearing the arguments of the Government Pleader. Assuming for 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 XLIV, 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, of the judgment and decree appealed from, there is no reason to think that the decree is contrary to law or to some usage having the force of law, or otherwise erroneous or unjust, the Court is bound to reject the application. We have read through the appeal memorandum and the judgment and 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 other-wise 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 s and rejected with costs.


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