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Aubhoya Churn Dey Roy and anr. Vs. Bissesswari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal889
AppellantAubhoya Churn Dey Roy and anr.
RespondentBissesswari and ors.
Cases ReferredSkinner v. Orde I.L.R.
Excerpt:
limitation act (xv of 1577), section 4 - application to sue in forma pauperis--refusal of application--extension of time granted for payment of court-fee--payment of court-fee after period of limitation--civil procedure code (act xiv of 1882), sections 409, 410, 413. - .....court-fee stamps. the stamps were afterwards put in, and apparently affixed to the original pauper application which was treated as a plaint in the suit.3. it is found that the appellant's cause of action in the suit arose on the 28th november 1878, so that the time within which the suit could have been brought expired two days after the application to sue as a pauper had been presented. both the courts have now dismissed the suit on the ground that it is barred by limitation, and we think it is quite clear that the decision is right.4. under section 409 of the code of civil procedure, the court was bound either to allow (sic)to reject the application. if it allowed the application, it was to be numbered, registered and treated as a plaint in the suit. if it was rejected, then,.....
Judgment:

Macpherson and Ameer Ali, JJ.

1. On the 26th November 1890 the appellants presented an application for permission to sue in forma pauperis.

2. The application was rejected on the 16th May 1891. The Subordinate Judge, by an order of the same date, allowed them time within which to pay the necessary Court-fee stamps. The stamps were afterwards put in, and apparently affixed to the original pauper application which was treated as a plaint in the suit.

3. It is found that the appellant's cause of action in the suit arose on the 28th November 1878, so that the time within which the suit could have been brought expired two days after the application to sue as a pauper had been presented. Both the Courts have now dismissed the suit on the ground that it is barred by limitation, and we think it is quite clear that the decision is right.

4. Under Section 409 of the Code of Civil Procedure, the Court was bound either to allow (sic)to reject the application. If it allowed the application, it was to be numbered, registered and treated as a plaint in the suit. If it was rejected, then, under Section 413, the applicant could not again apply to sue as a pauper in respect of the same right, but he was at liberty to institute a suit in the ordinary manner in respect of such right. Section 4 of the Limitation Act provides that, in the case of a pauper, the suit is instituted when the application for leave to sue as a pauper is filed. That obviously only applies to a case in which the application is granted.

5. The Subordinate Judge had no power, after the rejection of the application, to give time for the presentation of a plaint or to treat the old application as a plaint in the suit. It seems clear, from the provisions of Sections 409, 410 and 413 of the Code of Civil Procedure and Section 4 of the Limitation Act, that the suit must be taken to have been instituted some time after the application to sue as a pauper was rejected. What that exact time is we need not consider, because in any view of the matter the suit was out of time. The decision of the lower Courts is in accordance with the decisions of the Bombay High Court in the case of Keshab Ramchandra Deshpande v. Krishna Rao Venkatesh Inamdar I.L.R. 20 Bom. 508 and of the Allahabad Court in the cases of Naraini Kuar v. Makhan Lal I.L.R. 17 All. 526 and of Abbasi Begam v. Nanhi Begam I.L.R. 18 All. 206.

6. The learned pleader for the appellant relied upon the case of Skinner v. Orde I.L.R. 2 All 241 but that case is clearly distinguishable, as there was in that ease no order rejecting the application. The appeal is dismissed with costs.


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