Shiv Dayal and Others vs Ram Kali and Others

Hemant Gupta, J.—The challenge in the present revision petition is to the order passed by the Executing Court on 8.1.2005 whereby it has been found that the decree-holders are entitled to interest on the amount decreed in suit from the date of the application for permission to sue as an indigent person in terms of Order 33 Rule 3 of the Code of Civil Procedure.

The learned counsel for the petitioners has argued that the application to sue as an indigent person was dismissed as infructuous and, therefore, the suit would be deemed to have been filed on the date the Court fee is paid and not on the date when the application to sue as indigent person was filed.

The learned counsel for the respondents has relied upon the judgment of Hon''ble the Supreme court reported as Jugai. Kishore v. Dhanno Devi AIR 1973 SCC 2508, wherein the court has considered the legal position arising out of an order passed under rule 7(3) refusing to allow the applicant to sue as a pauper. The Court found that an application to sue in forma pauper is, is a method prescribed by the Code for institution of a suit by a pauper without payment, of fee prescribed by the Court Fees (Act) and, therefore, the suit commences from the moment an application for permission to sue in forma pauperis is presented. The following observations may be reproduced :-

"Nevertheless, it must be noted that there is almost a consensus of opinion of the application to sue as a pauper, the plaintiff offers to pay the court fee treating the application as his plaint, or the Court, agreeing to treat it as a plaint, enlarges the time for payment of the court fee the application must be regarded as a plaint instituted on the day when the application was presented See: Stuart Skinner v. Willam Order I.L.R 1878(80) .241. (P) and Devendar Kumar Bharti Vs. Mahanta Raghuraj Bharti and Others, . This proceeds on the view that the Court has power to permit the application to sue in forma pauperis to be treated as a plaint and to extend the time, if necessary, for payment of court fee on the documents, in view of the fact that it contains all the necessary particulars for the purpose of a plaint."

In view of the said judgment, the argument raised by the learned counsel for the

petitioner that interest cannot be awarded as payable to the decree-holders from the date of filing of the application to sue as indigent person has no merit.

Consequently, I do not find any illegality or irregularity in the order warranting interference in exercise of revisional jurisdiction under Article 227 of the Constitution of India.

Dismissed in limine.