M.M.KUMAR, J. - (1.) THIS is an application seeking review of the order dated 11.1.2007, passed by the learned Single Judge (now retired) of this Court setting aside the order of the trial Court passed in favour of the applicant permitting him to sue in forma paupers as an indigent person under Order XXXIII of the Code of Civil Procedure, 1908 (for brevity, 'the Code'). The applicant-respondent No. 1 did not appear despite service by affixation. However, on the submission made by the learned State counsel before the learned Single Judge that the applicant-respondent No. 1 was owner of Scooter bearing Registration No. HR-08A-1789 and the he owned 1/3rd share in a house measuring 401 Sq. Yard, the order passed by the Trial Court on 23.8.2005, was set aside. Notice of the application was issued. The non-applicant-petitioners have filed their reply. Mr. Rajinder Goyal, learned counsel for the applicant-respondent No. 1 has pointed out that the scooter to which reference has been made does not belong to the applicant-respondent No. 1. In that regard he has placed on record a copy of the Registration Certificate of the scooter (issued under the Central Motor Vehicles Rules, 1989) (Annexure A-4). A perusal of the certificate shows that the scooter has been registered in the name of one Shri Krishan Chander. With regard to the house, it has been pointed out that the applicant- respondent No. 1 has 1/3rd share and he has been living in that house with his family members. According to the report submitted by the Collector, Kaithal, on 18.12.2002 (A-1), the applicant-respondent No. 1 Baldev Raj is residing at Khurana Road, Patti Kaisth Seth, Kaithal and belongs to Chamar community. It is claimed that the applicant-respondent No. 1 has only one house in which he is living. Learned counsel has argued that according to Order XXXIII Rule 1 of the Code only that property can be taken into account which is beyond the power of attachment as given in Section 60 of the Code. Learned counsel has referred to the provisions of Section 60(1) proviso (c) of the Code.
(2.) MR . Harish Rathee, learned State counsel, however, has submitted that the applicant-respondent No. 1 owns various properties and he cannot be permitted to sue in forma paupers as an indigent person. After hearing learned counsel for the parties we are of the considered view that there is an error apparent on the face of the record and the order dated 11.1.2007, passed by the learned Single Judge is liable to be reviewed. It has come on record that the scooter bearing Registration No. HR-08A-1789 does not belong to the applicant-respondent No. 1 whereas the property which has been taken into account by the learned Single Judge is self-occupied, which cannot be taken into account by virtue of the provisions of Order XXXIII Rules 1 of the Code, which reads thus : "1. Suits may be instituted by indigent person. - Subject to the following provisions, any suit may be instituted by an indigent person - Explanation I. - A person is an indigent person,- (a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or xxx xxx xxx " (Emphasis added)
(3.) A perusal of the aforementioned Order would reveal that a person could be considered as an indigent person if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit. For determining the issue concerning 'indigent person' the property which is exempt from attachment and the subject of the suit is not to be taken into consideration. The aforementioned position has been clarified further by Section 60(1)(c) of the Code, which reads thus : "60. Property liable to attachment and sale in execution of decree. - (1) The following property is liable to attachment, and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned all other saleable property, movable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf : Provided that the following properties shall not be liable to such attachment or sale, namely: (a) xxx xxx xxx (b) xxx xxx xxx (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and occupied by him; xxx xxx xxx" ;