Allahabad High Court
Muhammad Farzand Ali vs Rahat Ali And Ors. on 1 February, 1918
Equivalent citations: (1918)ILR 40ALL381
JUDGMENT
Tudball and Muhammad Rafiq, JJ.
The present applicant brought a suit in forma pauperis for possession of certain property which had been mortgaged. He sought to recover possession without payment of any sum of money. On the 15th of July, 1916, the court gave a decree for redemption of the mortgage on payment of Rs. 4, 301-3-2. On the 19th of August, he filed an application under Order XLIV, Rule 1; together with a memorandum of appeal as directed therein asking for permission to be allowed to appeal in forma pauperis. The appellate court directed further inquiry by the court of first instance into the alleged pauperism and, on the 15th of February, that court reported that the applicant was a pauper. On the 17th of February, 1917, the Court then took action under the proviso to Rule 1 of Order XLIV. It examined the judgement and the decree and rejected the application under that proviso. Information of this was sent to the applicant by post and he received it on the 17th of March, 1917. On the 20th of March, 1917, the applicant filed a petition stating that he had received a post card from the court intimating that his application for permission had been rejected. He therefore prayed that he might be permitted to pay the court fee on his memorandum of appeal. On this the lower court passed the following order:--"Yesterday the applicant filed a petition requesting to be allowed to deposit fees and to prosecute his appeal. His appeal was dismissed on the 17th of February last. I reject his petition. "The court therefore refused to exercise its jurisdiction in allowing the court fee to be paid under the impression that the appeal had been dismissed on the 17th of February. This is clearly wrong. The appeal had never been dismissed. The memorandum of appeal is still before the court. On the 17th of February, what was rejected was the application for permission to appeal in forma pauperis. We think that in the circumstances the appellant should have been allowed to pay the court fee, if he so wished, and we allow this application and direct the lower court to allow this to be done. Any question of limitation that may arise will be decided by the court in the usual way according to law. The court below will fix a time within which the applicant will pay the court fee. In regard to the costs or this application, they will be costs in the cause and will abide the result.