1. This is an application for leave to prosecute an appeal to His Majesty in Council in forma paupuris and exonerate the appellant from depositing the respondents' costs and paying Council office fees.
2. Leave to appeal has already been given, that is to say, a certificate has been granted under the Code of Civil Procedure. The question then arises what powers have we to accede to this prayer. Our powers are defined by the Code and in particular by the group of sections which begin with Section 109 and by Order XLV.
3. Leave to appeal in this case was obtained without any mention of pauperism and it was given as, of course, because the subject-matter in dispute was over Rs. 10,000 and the decree appealed from did not affirm the decision of the Court immediately below. There was no investigation into the merits of the appeal, nor was there any certificate of Counsel that the petitioner had reasonable grounds for appeal. The certificate being granted under Rule 7, Order XLV of the Code, it became obligatory on the appellant within six months from the date of the decree complained of or within six weeks from the date of the grant of the certificate whichever might be the later date to furnish security for the costs of the respondents. But the purpose of the present application is to obtain leave to prosecute the appeal as a pauper, and to be exonerated from depositing the respondents' costs and Council office fees. What power have we to do that? It is not suggested that there is any express provision in the Code, and I am not aware of any power, which would enable us to make such an order.
4. On the contrary, the provisions of the Code are, in my opinion, inconsistent with a power in this Court to grant leave to appeal to His Majesty in Council in forma pauperis. Where such leave is required, it is necessary for a petitioner to apply in England in accordance with the rules that govern such applications. Quinlan v. Child (1900) A.C. 498; 69 L.J.P.C. 85; Quinlan v. Quinlan (1901) A.C. 612; 70 L.J.P.C. 122; 85 L.T. 360; Ponamma v. Arumogam (1902) A.G. 561; 71 L.J.P.C. 121; Walker v. Walker (1903) A.C. 170; 72 L.J.P.C. 36; 88 L.T. 133; 51 W.R. 658.
5. I do not overlook the case brought to our notice where leave to appeal as a pauper was granted by this Court in 1908. But the application was unopposed, and there is nothing in the judgment which shows how this power to grant leave to appeal as a pauper was vested in the Court. Moreover, I may point out that the leave granted was not to prosecute the appeal as a pauper but to appeal as a pauper and in this connection I may point to the head-note in Munni Ram v. Sheo Churn 4 M.I.A. 114; 7 W.R.P.C. 29 where it is said 'although, the Courts in India admit a party to appeal to England in forma paupuris, yet the appellant ought to make a special application to the Queen in Council, for leave to prosecute such appeal in forma pauperis.'
6. In this case, I would reject the application with costs, two gold mohurs to each set of respondents.