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Koti Vishwandham Vs. Pandiri Satyanandham and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in162Ind.Cas.840
AppellantKoti Vishwandham
RespondentPandiri Satyanandham and ors.
Cases ReferredAbdul Jabar v. Sanubibi A.I.R.
Excerpt:
civil procedure code (act v of 1908), order xxxiii, rule 5(e) - leave to appeal in forma pauperis--transfer of subject-matter of suit by appellant during pendency of suit in lower court, effect of--scope of order xxxiii, rule 5(e). - .....by executing the document ex. c the petitioner has transferred the whole of his interest in the subject-matter of the appeal to a third parly. it is contended for him that order xxxiii, rule 5 (e) has no application because there was no appeal in contemplation at the time when he executed ex. c. exhibit 0 was executed in 1932 when the suit was pending; the decree was passed on july 17, 1934, and only, thereafter the question of an appeal by this petitioner could arise. i cannot accept this reading of order xxxiii, rule 5 (e). there is no doubt whatever but that an appeal is now 'proposed'' and that the would-be appellant has entered into an agreement under which another person has obtained an interest in the subject-matter of the appeal. the case falls precisely within the words of.....
Judgment:
ORDER

Burn, J.

1. This application coming on for bearing upon perusing the application and the judgment and decree of the lower Court and upon hearing the arguments of Mr. M.S. Ramachandra Rao, Advocate, for the petitioner, and of Mr. G. Chandrasekhara for Mr. G. Lakshmanna, Advocate, for the 10th respondent, respondents Nos. 1 to 4 having been replaced by the 10th respondent, the Official Receiver no notice having been taken out to the 5th respondent he having been given up, and respondents Nos. 6 to 9 not appearing in person or by pleader, the Court made the following

2. It is not disputed that by executing the document Ex. C the petitioner has transferred the whole of his interest in the subject-matter of the appeal to a third parly. It is contended for him that Order XXXIII, Rule 5 (e) has no application because there was no appeal in contemplation at the time when he executed Ex. C. Exhibit 0 was executed in 1932 when the suit was pending; the decree was passed on July 17, 1934, and only, thereafter the question of an appeal by this petitioner could arise. I cannot accept this reading of Order XXXIII, Rule 5 (e). There is no doubt whatever but that an appeal is now 'proposed'' and that the would-be appellant has entered into an agreement under which another person has obtained an interest in the subject-matter of the appeal. The case falls precisely within the words of Rule 5 (e), Order XXXIII, and I must respectfully decline the petitioner's learned Advocate's invitation to follow the ruling on Abdul Jabar v. Sanubibi A.I.R. 1934 Cal. 710 : 152 Ind. Cas. 514 : 38 C W N 1069 : 7 R C 281. I prefer with respect the view taken by Mockett, J., in C.R.P. No. 381 of 1935 (not yet reported). The present petitioner has no interest whatever now in the subject-matter of the appeal; there is another person who has acquired all his interest. The suggestion on behalf of the petitioner is apparently that he should be allowed to file the appeal for his transferee, free of court-fee, while the transferee, able to pay but risking nothing, stands by. I believe Order XXXV, Rule a (e) was designed to prevent anything of the kind.

3. Leave to appeal in forma pauperis is, therefore, refused and this petition is dismissed with costs. Time to pay court-fee is asked for bat refused as I am satisfied that there was no bona fides in the application for leave to appeal in forma pauperis.


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