- (1.) This revision petition arises out of an order of the Additional District Judge, Faridkot, dated 20th of October, 1980, whereby the appeal against the order of the trial Court dismissing the application for permission to sue as a pauper was maintained. The appeal before the Additional District Judge has not been dismissed on merits but on the ground that the same is not maintainable in law as no appeal against such an order under Order 33 Rule 5 or 7, Civil Procedure Code, rejecting the application for permission to sue as an indigent person was provided at the time when the application was filed on 1st January, 1975. According to the learned lower Appellate Court this right of appeal has been given only under the amended Civil Procedure Code which came into operation on 10th September, 1976. Since the application was instituted before the coming into force of the amended Civil Procedure Code, the proceedings will be governed by the old Civil Procedure Code, under which no appeal, admittedly was competent against the impugned order. Feeling aggrieved against this, the petitioner has come up in revision to this Court.
(2.) It is the common case of the parties that no appeal was provided under the Civil Procedure Code prior to its amendment in the year 1976. It is by virtue of the amendment of Order 43 Rule 1, Civil Procedure Code, wherein clause (na) has been added which is to the following effect : "(na) an order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;" Because of this amendment, the order passed under Rule 5 or Rule 7 of Order 33 has been made appealable. The application filed in the year 1975 was decided on 22nd January, 1980. Section 97 of the Civil Procedure Code (Amendment) Act, 1976, deals with the repeals and savings. Sub-section (3) thereof provides as under :- "Save as otherwise provided in sub-section (2), the provisions of the Principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal, or application is instituted or filed, had been acquired or had accrued before such commencement." There is no provision under sub-section (2) of Section 97 contemplating any such contingency. Under these circumstances, it is sub-section (3) of Section 97, Civil Procedure Code, which will govern the present controversy. Since the right of appeal was provided during the pendency of the application for permission to sue as a pauper, the provisions of the principal Act as amended by this Act shall apply to these proceedings pending at the commencement of this Act.
(3.) The learned counsel for the petitioner relied upon Ram Niwas v. Mittran Lal,1979 CurLJ 497. In my opinion, the ratio in that case is not of much help to determine the controversy in the present case. The five propositions enumerated therein on the basis of Gareeka Pati Veeraya v. N. Subbiah Choudhary and others, 1957 AIR(SC) 540 also do not cover the present dispute.;