1. Plaintiff 1, who is the appellant here and was the appellant in the lower appellate Court, made an application for leave to appeal as a pauper. The application was presented on 10th June 1929, the last day of the period of limitation for appealing. She did not file a copy of the decree against which she sought to appeal until 3rd September 1929. The District Judge gave leave to appeal in forma pauperis on 17th December 1929, and on the same occasion the delay in presenting copies of the decree and judgment was excused. The lower appellate Court, when the appeal came on for hearing, upheld the preliminary objection that the appeal was out of time and that, inasmuch as no copy of the decree appealed from had been produced until after the expiry of the period of limitation, there was no valid presentation of the appeal.
2. Undoubtedly it is a condition required by Order 41, Rule 1, Civil P.C., to the validity of an appeal that the memorandum of appeal presented by the appellant shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) a copy of the judgment on which it is founded; and it follows that no appeal can be entertained by a Court without the requisites for preferring it having been complied with. The question however is whether the procedure laid down in Order 41, Rule 1, Civil P.C., is to be followed where the party wishes to appeal in forma pauperis. Order 44, Civil P.C., governs such appeals. Rule 1 of this order, as was observed in the Full Bench case in Shahzadi Begam v. Alakh Nath 1935 ALJ 681, does not require that the applicant for leave to appeal as a pauper shall file copies of the decree and judgment though he may do so. But the point was not decided by the Full Bench. What Rule 1, Order 44, Civil P.C. says is:
Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable.
3. If there was nothing else in the rule one would be justified in saying that the rule contemplates what it says, that the applicant has only to present an application for leave to sue as a pauper with the memorandum of appeal and satisfy the Court that he was a pauper. But then comes the proviso to that rule which says:
Provided that the Court shall reject the application, unless, upon a perusal thereof and of the judgment and decree appealed from, it sees 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.
4. It is argued that the rule contemplates two stages: firstly, the filing of the application and the memorandum of appeal, and, secondly, the production of copies of decree and judgment when the application comes on for hearing. This is to treat the proviso to Rule 1 as if it is simply intended to qualify what went before. But a proviso may contain matter which is in substance adding to and not merely qualifying what goes before : see Craies on Statute Law, Edn. 3, p. 195. The proviso to Order 44, Rule 1, limits the power of the Court to give leave to appeal to pauper applicants and must be read as part of the enactment. Under the former Code of 1882, Section 592, it was held that copies of decree and judgment must be presented with the application and memorandum of appeal : see Bechi v. Ahsan Ullah Khan (1890) 12 All 461. But then Section 592 expressly made an application for leave to appeal as a pauper subject to the provision of Section 541 which corresponded to Order 41, Rule 1. On the other hand Order 44, Rule 1, Civil P.C., contains no reference to Order 41, Rule 1, Civil P.C.
5. The contention is that this must be understood as dispensing with the production of copies of decree and judgment required by Order 41, Rule 1, when the application is for leave to appeal as a pauper. It is difficult to see why it should be so; for the proviso to Order 44, Rule 1, makes it incumbent upon the applicant to show to the Court that prima facie the decree appealed from was contrary to law, and this can only be done by means of reference to the decree and judgment on which it is founded. It can hardly be intended that it is for the Court to call for copies of the judgment and decree when it has to consider an application made to it for leave to appeal as a pauper. With regard to the absence from Order 44, Rule 1, Civil P.C., of any reference to the applications being subject to the provisions of Order 41, Rule 1, Civil P.C., such as was to be found in Section 592 of the old Code, it seems to me that such reference is redundant in the light of the proviso. In the view I take there was therefore no valid application for leave to appeal before the Court without the presentation of the copies of decree and judgment, and by the time the order excusing delay was made the appeal was time barred. The order excusing the delay could only be made under Section 5, Lim. Act. This order was made ex parte, and it has been authoritatively settled that the order so made is liable to revision and re-consideration by the appellate Court at the hearing of the appeal : see Krishnaswami Panikondar v. Ramaswami Chettiar 1917 45 IA 25 and Malli Reddi v. Peddakka 1915 27 MLJ 147. In the case of the first named, their Lordships said:
It must therefore in common fairness be regarded as a tacit term of an order like the present that, though unqualified in expression, it should be open to reconsideration at the instance of the party prejudicially affected; and this view is sanctioned by the practice of the Courts in India.
6. The ruling in Murugappa Naicker v. Thayammal 1923 16 MLW 662, which has been cited to the effect that if an ex parte order was made excusing the delay in the presentation of an appeal the respondent ought to apply to the Court by motion to have the order vacated is contrary to the procedure sanctioned by their Lordships in Krishnaswami Panikondar v. Ramaswami Chettiar 1917 45 IA 25. In my opinion the lower appellate Court rightly reconsidered the order excusing the delay, and rightly held that the appeal was out of time. The second appeal is therefore dismissed with costs. The appellant will pay the court-fee to the Government. Leave to appeal given.