- (1.) CIVIL Revision No. 474 of 1946 filed by the legal representatives of Mohammad Baksh came up before a Bench of this Court on 14-9-1950, and, while my brother Agarwala, J. was of the opinion that the applicants could continue the proceedings if they were prepared to pay the court-fee, or if they could allege and establish that they were paupers and were not able to pay the court-fee, the other learned Judge, Pearey Lal Bhar-gava J. took a contrary view.
(2.) BY reason of the difference of opinion two questions of law were formulated and referred to a larger Bench for decision. The points are: "1. Whether the heirs of a person, who has made an application for leave to sue in 'forma pau-peris' under Order 33 of the Code of Civil Procedure and dies before the application is allowed or refused under Rule 7 of the Order, can continue the proceedings in their own right either upon showing that they are themselves paupers or by offering to pay court-fee on the plaint? If the answer be in the affirmative, whether the heirs have to show that the original applicant was also a pauper? 2. Whether, in the circumstances of the present case, the objection that the right to sue did not survive is open to the applicants, in view of the order bringing the heirs on the record in the previous revision application and the final decision passed on that revision appli-cation?"
(3.) THE facts of the case so far as they are necessary for the decision of the points raised are that mohammad Baksh and Haidar Baksh filed an application under Order 33 of the Code of Civil procedure for permission to file a suit in 'forma pauperis'. They claimed that they were brothers and were the legal representatives and heirs of Haji Ahmad Baksh, who had died on 11-12-1928 and were entitled to his property which was to the wrongful possession of the opposite party. This application was rejected by the lower Court on a finding that Mohammad Baksh and Haider baksh were not paupers. An application in revision was filed in this Court and during the pendency of the application Mohammad Baksh died. On the death of Mohammad Baksh his legal representatives Latif-un-Nissa and others applied that they be brought on the record and allowed to continue the civil revision. This application was granted without any objection and on 27-4-1944, the revision application came up for hearing. The application was allowed and the following order was passed: "we send the case back to the learned Civil Judge with the direction to consider the question of pauperism on the materials on the re-cord. He should not take into consideration the value of the property covered by the gift and the wakf. If, independently of the property covered by these two transactions, the plaintiffs have sufficient means within the meaning of the law, to pay court-fee, they shall not be entitled to sue in 'forma pauperis'. If, on the other hand, they succeed in establishing that they have not sufficient means, they will be entitled to sue as paupers. ";