1. The petitioner who applied for leave to sue as a pauper has brought a suit to redeem a mortgage (for Rs. 6,000. The mortgage is stated to be a mortgage by conditional sale, and the petitioner is not in possession. In his plaint he alleges that the mortgaged property is worth at least Rs. 12,000. The Subordinate Judge has dismissed the application in the following words:
The petitioner cannot redeem except on payment of Rs. 6,000 according to him. If he can find that amount after the decree is passed he can find it now and file the suit after paying court-fee.
2. The petitioner in order to bring himself within the explanation of 'pauper' in Order XXXIII, Rule 1, Civil Procedure Code, must show that he is not entitled to property worihRs. 100 other than his necessary wearing apparel and the subject-matter of the suit. He has at least the equity of redemption which he admits to be worth considerably more than Rs. 103. In Kapil Deo, Singh v. Ram Rikha Singh 8 Ind. Cas. 484 : 33 A 237 : 7 ALJ 1191, it was held that a plaintiff suing for redemption of a mortgage could not be allowed to sue as a pauper when he could raise money on his equity of redemption. The ground of that decision was that such a course did not amount to a mortgaging of the plaintiff's claim within the mischief aimed at in Vendanta Desikacharyulu v. Perindavamma 3 M 219The report does not state what was the character of the mortgage or whether the mortgagor was in possession, But the ruling does not cover the question to be considered in the present case. I think there can be no doubt that the subject-matter of a mortgagor's suit for redemption is his right to redeem or his equity of redemption. I cannot conceive what else could be the subject-matter of the suit. Reference has been made to Sekhdran v. Eacharan 3 Ind. Cas. 459 : 20 MLJ 121 : CM LT 345. There it was held that the equity of redemption was 'the subject-matter in dispute' for the purpose of the Court Fees Act. It was suggested in the argument that the decision should be limited to the construction of the particular words in that Act. It seems to me that there is no real distinction, and that in a suit for redemption the* equity of redemption is equally 'the- subject-matter in dispute' within the Court Fees Act and 'the subject-matter of the suit under Order XXXIII, Rule 1, The value of the equity of redemption to which the petitioner is entitled must, therefore, be excluded in determining whether he is a 'pauper' as defined in the latter part- of the Explanation. The Subordinate Judge will have to enquire whether the petitioner is entitled to any other property worth Rs. 100. The case is remitted to him for this purpose and for disposal in the light of the above of the obervations. The costs of this revision petition will abide the result of his finding.