In Re: Pokala Mahalakshmi Ammal

Jackson, J.—The petitioner applied for leave to prefer an appeal in this Court from the decree of the District Court, Chingleput, in forma

pauperis. Her petition was sent to the District Judge for enquiry whereupon the judgment-debtor (she herself has obtained a decree for

maintenance and is appealing for a larger amount) paid Rs. 571 (Rupees Five hundred and seventy-one) into Court to her credit. The District

Judge passed an order allowing her to draw out the money, and reported that she had means to pay the stamp duty of Rs. 200 (Rupees Two

hundred) on her appeal. To this report she objects. Of course Rs. 571 (Rupees Five hundred and seventy-one) is the subject-matter of the suit,

though not of the appeal, but this causes no difficulty because it has been ruled in Krishna Bai v. Manohar ILR (1906) 30 Bom 593 that ""the

subject-matter of the suit"" in Order 33, Rule 1, Civil Procedure Code, does not qualify ""sufficient means"" and the subject-matter of the suit is

excluded as being presumably out of the pauper''s reach which is not so in the present case of. Dwarkanath Narayan v. Madhavrav Vishvanath

ILR (1886) 10 Bom. 207. But another Bombay Bench, Bai Raiagauri v. Motilal Ghellabhai ILR (1922) 47 Bom 523, besides holding that the

subject-matter of the suit cannot be taken into consideration in calculating the plaintiff''s means, apparently overlooking Krishna Bai v. Manohar

ILR (1906) 30 Bom 593, has also held that the pauper applicant is not obliged to take out of Court what is deposited or paid in. and cannot,

therefore, if he choose to allow the deposit or payment made in Court to remain there, be said to be possessed of sufficient means as if the deposit

were actually in his possession. This differs from a previous ruling of the same Court in Dwarkanath Narayan v. Madhavrav Vishvanath ILR

(1886) 10 Bom 207 and with all respect I think it a most genuine definition of "" possessed "" to confine the phrase to actual possession on one''s

own person. I see no distinction between moneys deposited in Court and ordered to be delivered to a person and moneys lying at a person''s

credit in a Bank. I should hold that a person with Rs. 571 (Rupees Five hundred and seventy-one) at her disposal in the Court is possessed of

sufficient means to enable her to pay stamp-fee of Rs. 200 (Rupees Two hundred). Nor do I think it necessary to contemplate that possibly the

Rs. 571 (Rupees Five hundred and seventy-one) might have been attached; it was not attached when the District Judge passed his order, I also

think it unnecessary to go into the question whether supposing the petitioner''s estate went into liquidation she would have sufficient balance to pay

the stamp-fee. It is enough to find that at the time of hearing her application she had sufficient means.

I have been asked to refer the matter to a Bench because of Bai Balagauri v. Motilal Ghellabhai ILR (1922) 47 Bom 523 but the Bombay

rulings are so contradictory that I do not consider it to be in the face of clear authority that I am deciding that petitioner is possessed in the

circumstances of sufficient means and not entitled to sue as a pauper.

The petitioner to be allowed to appeal as a pauper is dismissed. The petitioner can pay the requisite fee within one month from the date of this

order.