In Re: Logambal Ammal

Krishnaswami Nayudu, J.—This arises out of a reference made by the Master as regards the correct fee payable on the appeal.

The Appellant applied for leave to institute the suit in forma pauperis in Application No. 756 of 1954, which came up before the Master, who

rejected the application and refusing him permission to sue as pauper, by his order, dated roth September 1954. As against the order dismissing his application an appeal was preferred to the Judge sitting in Chambers, Application No. 4431 of 1954, which likewise was dismissed on nth

November 1954. The order of the Master was passed under Order XXXIII, Rule 7, Code of Civil Procedure, after taking evidence and hearing

arguments. As against the order of dismissal of the appeal before the learned Judge, this Original Side Appeal is preferred with a court-fee of Rs. 2

on the memorandum of appeal. The appeal was returned for payment of proper court-fee.

The contention of the Appellant is that though the order of the Master was appealed against, the proceeding before the learned Judge is virtually

not an appeal, but only an application, as the proceeding is only a Judge's Summons and the order of the learned Judge dismissing the Judge's

Summons seeking to set aside the order of the Master could only be considered to be an order which would be appealable under the CPC and a court-fee of Rs. 2 only is payable under item 45(1) of the High Court Fees Rules. Item 45 is as follows:

Memorandum of appeal from an order other than an order under the Madras Agriculturists'' Relief Act, 1938--

(1) Where the order appealed from would be 2

appealable under the Code of Civil

Procedure, 1908, if it had been passed by a

subordinate Court

(2) In any other case 100

The obvious fallacy in the contention of the learned Counsel is that he assumes that the Judge's Summons taken out to set aside the order of the

Master is not an appeal. An order passed under Order XXXIII, Rule 7, Code of Civil Procedure, is appealable under Order XLIII, Rule 1(nn),

which provides that,

an order under Rule 5 or Rule 7 of Order XXXIII, Code of Civil Procedure, rejecting an application for permission to sue as pauper on the ground specified in Clause (d) or (d-1) of Rule 5 aforesaid.

is appealable. The order having been passed by the Master under Order XXXIII, Rule 7 and being appealable, an appeal was filed before the learned Judge which, under the Original Side Rules, has to be in the form of a Judge's Summons. The mere fact that the Original Side Rules provide the form of the appeal to be by way of Judge's Summons would not deprive the character of the proceedings before the Judge, being a proceeding to set aside the order of the Master, which right to set aside the order is by way of an appeal provided for under Order XLIII, Rule

1(nn) of the Code. The present Original Side Appeal is not against an order passed rejecting the application for leave to sue in forma pauperis under Order XXXIII, Rule 7, but is against an order passed by the Judge sitting in Chambers on the Original Side of the High Court in appeal, and an appeal against such an order is provided for under Clause 15 of the Letters Patent. The order of the learned Judge is, therefore, not an order passed under Order XXXIII, Rule 7 , but an order passed in appeal. Item 45 of the High Court Fees Rules provides for the payment of court-fee of Rs. 2 only, when the order appealed from would be appealable under the Code of Civil Procedure, if it had been passed by a subordinate

Court. It is needless to point out that a Judge of this Court sitting in Chambers is not subordinate to the High Court notwithstanding that an appeal is provided against the order or judgment of a single Judge of the High Court to a Bench of the same High Court.

In any view, item 45(1) of the High Court Fees Rules would not apply to the present case and the proper court-fee is that provided under item

45(2), namely, Rs. 100.