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Purna Chandra Chabri and anr. Vs. Tara Prosad Maiti - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.600
AppellantPurna Chandra Chabri and anr.
RespondentTara Prosad Maiti
Cases ReferredDwarka Nath Narayan v. Madhavrav Vishvanath
Excerpt:
civil procedure code (act v of 1908), order xxxviii, rules 5, 6, order xxxiii, rule 8 - application fur leave to sue as pauper--suit, commencement of--attachment before judgment, order for--jurisdiction. - .....preferred against the order dated the 1st august 1914. appeal no. 391 is infructuous because the learned judge subsequently passed an order canceling the orders dated the 20th june and the 16th july 1914 against which that appeal has been preferred. that appeal is accordingly dismissed. 'we are now concerned only with appeal no. 426 which is preferred against the order of the 1st august 1914. the plaintiff in this case has applied for leave to sue in forma pauperis. that application has not yet been judicially determined; it is still pending before the court. but before the determination of that application, the plaintiff applied to the court and obtained an order of attachment before judgment under the provisions of order xxxviii, rules 5 and 6 of the code of civil procedure. the.....
Judgment:

Fletcher, J.

1. These are two appeals from the orders passed by the learned Subordinate Judge of Midnapur. Appeal No. 391 is preferred against the orders dated the 20th June and the 16th July 1914 arid Appeal No. 426 is preferred against the order dated the 1st August 1914. Appeal No. 391 is infructuous because the learned Judge subsequently passed an order canceling the orders dated the 20th June and the 16th July 1914 against which that appeal has been preferred. That appeal is accordingly dismissed. 'We are now concerned only with Appeal No. 426 which is preferred against the order of the 1st August 1914. The plaintiff in this case has applied for leave to sue in forma pauperis. That application has not yet been judicially determined; it is still pending before the Court. But before the determination of that application, the plaintiff applied to the Court and obtained an order of attachment before judgment under the provisions of Order XXXVIII, Rules 5 and 6 of the Code of Civil Procedure. The learned Judge passed the present orders, the last one being the only one with which we are now concerned. The question is ' Had the learned Judge jurisdiction to make an order in the suit attaching a portion of the defendant's property before judgment before he had determined whether the leave of the Court should be granted to the plaintiff to sue in forma pauperis?' The matter is perfectly clear on the rules that he had not. Until the Judge has determined whether or not the plaintiff should be permitted to sue as a pauper, there is no suit before the Court. It is merely an application. The rules laid down in Order XXXIII of the Code of Civil Procedure are quite clear on that. Order XXXIII, Rule 8, shows clearly that there is no suit in existence until the application to sue in jot ma pauperis has been granted. The matter is covered by judicial authority. If authority is required for the proposition, we need only refer to the decision of Wedderburn, J., in the case of Dwarka Nath Narayan v. Madhavrav Vishvanath 10 B. 207 : 5 Ind. Dec. (N.S.) 524. Appeal No. 426 is, therefore, allowed and the order of the learned Judge of the Court below dated the 1st August 1914 set aside and the plaintiff's application for attachment before judgment rejected. The respondent must pay to the appellants their costs both in this Court as well as in the Court below. We assess the hearing-fee in this Court at three gold mohurs.

Newbould, J.

2. I agree.


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