Decided on September 06,1972

K.Y.SODAMMA Appellant


Alladi Kuppuswami, J. - (1.) This is an application for leave to prefer an appeal in forma pauperis against the judgment of Krishna Rao, J., in A. S. No. 340 of 1967. It is stated that the appellants have no means to pay the court-fee. The appellants were the plaintiffs in the Trial Court and they were permitted to sue in forma pauperis.
(2.) A preliminary objection is raised that there is no provision of law enabling this Court to permit a person to prefer a Letters Patent Appeal in forma pauperis. It is argued that the provisions of Order 44, Civil Procedure Code have no application to a Letters Patent Appeal.
(3.) Order 44 provides that any person entitled to prefer an appeal, who is unable to pay the fee required for the Memorandum of Appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper. It is argued that the expression appeal used in this Order refers only to appeals provided by and preferred under the provisions of the Civil Procedure Code and as a Letters Patent Appeal is one preferred under Cl. 15 of the Letters Patent and not under the Civil Procedure Code, Order 44 has no application to such an appeal. We are unable to agree with this contention. The expression appeal used in this Order is comprehensive enough and includes all appeals, including a Letters Patent Appeal. The Code of Civil Procedure is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. The provisions of the Code apply to the High Court also. Section 117 of the Code expressly provides that the provisions of the Code shall apply to Courts, not being the Court of a Judicial Commissioner, save as provided in part IX or Part X of the Civil Procedure Code. Section 120 which occurs in part IX provides that Sections 16, 17 and 20 will not apply to the High Court in the exercise of its original jurisdiction. Section 122 provides, that High Courts may take rules regulating their own procedure and may by such rules annul, alter or add to all or any of the rules in the First Schedule. Subject to the argument based on Rule 51 (2) of the Appellate Side Rules which will be considered later it is admitted that the High Court has not passed any rules which have the effect of annulling, altering or adding to Order 44 which deals with pauper appeals. Rule 129 provides that notwithstanding anything in the Code the High Court may take such rules not inconsistent with the Letters Patent or orders or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it thanks fit. Thus, it is clear from a combined reading of all these provisions that O. 44 would apply to appeals in the High Court though preferred under the Letters Patent, as there is no provision or rule made by the High Court contrary to Order 44, Civil Procedure Code.;

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