1. This Rule is directed against an order of 2nd Court of the Subordinate Judge of Pabna dated 21st May 1934 allowing the application of the opposite party Sanu Bibi to sue in forma pauperis. The learned Subordinate Judge on a consideration of the evidence has come to the conclusion that she is a pauper. The learned Judge has also found that a mortgage bond which was executed by the lady three weeks after the presentation of the petition was not for any money paid to her in cash but the mortgage was given under pressure for previous loans of her husband. In this view of the matter the learned Subordinate Judge has allowed her application.
2. The only point which is urged in support of the rule is that the mortgage executed by the lady is an agreement which she entered with reference to the subject matter of the proposed suit under which the mortgagee has obtained an interest in such subject matter. In our judgment the agreement referred to in Rule 5, Clause (e), Order 33, Civil P.C, and which authorizes the Court to reject an application for permission to sue as a pauper is one which is champertous. If a parson enters into champerty or maintenance agreement for the prosecution of the litigation, he is not entitled to prosecute the suit in forma pauperis. See the case of Bai Chandbaba v, Kuver Sahab Bapu Saheb, (1894) 18 Bom 464 and the case of Mansa Puri v. Harbhagabat Puri, 1917 All 186. It is however argued by the learned advocate for the petitioner that if this view of Rule 5, Clause (e), Order 33 be taken the statutory charge of Government created by Rule 10, Order 33 on the subject matter of the suit would be defeated. But in view of the fact that the mortgage in this case was executed under circumstances already mentioned after the presentation of the application for leave to sue as a pauper and also in view of the fact that the court, fees form a Crown debt and in ordinary circumstances the Crown would be entitled to precedence in payment of the debt over all other creditors, we are not in a position to say that the learned Judge was not justified in allowing the opposite party to prosecute the suit in forma pauperis. The rule is accordingly discharged, but we however make no order for costs in this rule.