- (1.) Heard learned Counsel for the parties. It has been urged that the trial Court committed an error in permitting the opposite party to file the suit as indigent person. The main ground of attack is that the trial Court has not taken into consideration the amount of Rs. 10650/- paid to the opposite party towards her maintenance. It has been urged that it would not be "property" falling under the bracketted portion of Clause (a) of Explanation 1 of Order 33, Rule 1, C.P.C.
(2.) The bracketted portion of the aforesaid clause deals that in considering a person whether he is indigent person or not, the Court shall not take into consideration the properties exempt from attachment in execution of a decree and the subject matter of the suit. It was alleged that the property, which are exempt from attachment is referred to in Section 60, C.P.C. and reliance has been placed on sub clause (a) of the said Section wherein future maintenance is referred. It is on this an argument has been raised that since it is not the future maintenance would not be covered under Section 60, C.P.C.
(3.) The argument raised by the learned Counsel for the applicant is not acceptable. Order 33, Rule 1 ,[the bracketted portion of Explanation I, Clause (a)] only speaks about the property not liable to be considered while considering the sufficient means of a person, whether he is indigent person or not. But that does not exclude the Court from considering on the facts and circumstances of the case whether other material evidence the said person was possessed of sufficient means to pay the Court fee or not. In the present Case, the only means possessed by and urged by the applicant was the maintenance amount, which has been paid by the husband applicant to the wife to show sufficiency. The Court fee to be paid by the wife as per applicant was Rs. 6707.50/-;