Decided on March 03,1970

K. Ambalavanan Appellant
The Bank Of Madurai (Ltd.) Respondents


Tayi Ramaprasada Rao, J. - (1.) This Letters Patent Appeal is directed against the order of Kailasam J, dated 17th November 1966, in Civil Miscellaneous Petition No. 12412 of 1966, by which he, at the instance of the Respondent, revoked the leave granted by him earlier in Civil Miscellaneous Petition No. 14865 of 1965 which entitled to Appellant to file the appeal to this Court in forma paurperis. The earlier order was apparently made under Order XLIV of the Code of Civil Procedure.
(2.) We shall set out the relevant facts. Original Suit No. 11 of 1960 on the file of the Subordinate Judge's, Court, Thanjavur was filed by the Respondent against the Appellant his father and others. That was a mortgage suit which was ultimately decreed on 17th July 1964, by the Subordinate Judge, Thanjavur. The Appellant, who was the second Defendant in the suit filed a petition in this Court, Civil Miscellaneous Petition No. 14865 of 1965, for leave to file an appeal in forma pauperis. By an order dated 31st January 1966, Kailasam J., directed an enquiry by the lower Court into the alleged pauperism of the Appellant and galled for a report. The lower Court held an enquiry. In fact, the Respondent placed certain material before the Court below the persuade the learned Subordinate Judge to reject the application on the ground that the Appellant was guilty of suppression and consequential improper conduct. Inter alia it was suggested that the Appellant was possessed of properties, to wit, lands, coconut topes, cash in the shape of the deposits with the Estates Abolition Tribunal, etc., other than those which are the subject -matter of the appeal, and that as such assets were not disclosed when the petition for leave to institute the appeal in forma pauperis was filed, the petition ought to be rejected in limine. The Appellant was fully cross -examined on this aspect in the lower Court. The learned Subordinate Judge, after such full -fledged enquiry, found on the evidence before him that the Petitioner was not in possession of such properties or funds. He also observed that, though the assets mentioned belonged to the family of which the Appellant was a member there were no funds available with the Estates Abolition Tribunal and that all the other properties mentioned by the Respondent were involved in litigation due to the heavy indebtedness of the father of the Appellant. He accordingly found that the Appellant was not possessed of the necessary means to pay the requisite Court -fee. The Respondent filed objections to the. report and the matter finally came up before Kailasam, J., who granted leave, as prayed for. It appears, however, that the name of the Counsel for the Respondent was not shown in the clause list on the date of the hearing. Thereafter, the appeal was duly numbered as A.S. No. 683 of 1966 on the file of the Court and certain interim orders were also passed thereon. Then Civil Miscellaneous Petition No. 12412 of 1966 was filed by the Respondent to revoke the leave granted by this Court enabling the Appellant to file the appeal in forma pauperis. Kailasam J., in his order, dated November 17, 1966, cancelled his earlier order. It is significant that the Respondent filed Civil Miscellaneous Petition No. 12412 of 1966 under Sec. 151 of the Code of Civil Procedure Code and not even under Order XXXIII, Rule 9, Code of Civil Procedure Code, and did not ask for review of the earlier order. The Respondent's application rested on the only ground that there was suppression of material and that the applicant was not a person entitled to file the appeal in forma pauperis.
(3.) The Appellant, aggrieved against this order, as above, has filed this Letters Patent Appeal. Inter alia, the learned Counsel for the Appellant says that the report of the learned Subordinate Judge on the question of the pauperism of the Appellant having been called for, perused and virtually accepted by this Court, the earliest order granting leave cannot be revoked. His other objection is that as the impugned order has dispauperised the Appellant, it is not sustainable because Civil Miscellaneous Petition No. 12412 of 1966 is not even filed under Order XXXIII, Rule 9, but only under Sec. 151, Code of Civil Procedure Code.;

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