JUDGMENT Thomas, C.J. and Ghulam Hasan, J. - This is an application under Order XLIV Rule 1 of the CPC filed by the plaintiff-applicant. 2. The plaintiff brought a suit in the Court of the Civil Judge of Bahraich as a pauper in respect of six items of property detailed in the plaint. After the necessary enquiry into his pauperism, the learned Civil Judge allowed the plaintiff to sue as a pauper and ultimately decreed, the suit in his favour to the extent of twelve annas in two groves, which constituted item No. 5 of list A of the properties attached to the plaint. The suit was dismissed in respect of other items of the properties. 3. The plaintiff-appellant has filed a First Civil Appeal against that portion of the decree of the trial Court which dismissed his suit. The decree was made on the 31st May, 1940. No appeal has been filed by the defendants in the case but it is possible that if and when the plaintiff's appeal is admitted the defendants may exercise their right of filing cross objections in regard to that item of property which has been decreed to the plaintiff-appellant. 4. The plaintiff-appellant has filed the present application alleging that he is unable to pay the fee required for the memorandum of appeal in this Court and he is not possessed of any other property except that shown in the schedule annexed to the application, the valuation of which is only Rs. 9. The application also urges that the decree of the trial Court in so far as it is against him is contrary to law and in erroneous and unjust. 5. The defendants oppose this application. Mr. Ghosh appearing on behalf of the Government, also opposes the application. 6. We have heard counsel on both sides and are satisfied that the plaintiff-appellant is a pauper within the meaning of Order XLIV Rule 1 of the CPC and as such he is entitled to appeal as a pauper. The proviso to Order XLIV Rule 1 says that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. The proviso to Order XLIV Rule 1 says that the Court shall reject the application unless, upon a perusal thereof and of the judgment and decree appealed from, it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust. It may be mentioned that the present application arises in a First Civil Appeal, which has been filed against the judgment and decree of the trial Court and that the whole case will be open to determination on questions of fact as well as law in the appeal. 7. We have perused the application and the judgment in this case and having regard to the questions raised in the memorandum of appeal to this Court we think that the requirements of the proviso are fully satisfied in this case. Upon the merits, therefore, we see no reason to reject the application. 8. As regards the other question whether the plaintiff-appellant is a pauper within the meaning of Order XXXIII Rule 1 of the Code of Civil Procedure, it is urged on behalf of the defendants that the plaintiff has already obtained a decree in his favour from the trial Court, that the valuation of the share decreed to him is Rs. 1,350 and under these circumstances the plaintiff is possessed of sufficient means to enable him to pay the court fee. We do not think that the property decreed in favour of the plaintiff-appellant by the trial Court can possibly be taken into account in the present case In determining the sufficiency or otherwise of the plaintiffs means to enable him to pay the court-fee. That decree has not yet become final as there is still a possibility of the defendants' filing cross objections against it, the right to do which will arise upon the admission of this appeal. Where, as here, it is still possible for the defendants to assail the finality of that decree, it cannot be said that the appellant can exercise effective control, or dominion over the decreed property and therefore he cannot be held to be possessed of sufficient means to pay the court-fee. 9. In Ratikanta Moyra Vs. Where, as here, it is still possible for the defendants to assail the finality of that decree, it cannot be said that the appellant can exercise effective control, or dominion over the decreed property and therefore he cannot be held to be possessed of sufficient means to pay the court-fee. 9. In Ratikanta Moyra Vs. Sanaton Baidya and Others, AIR 1930 Cal 147 it was held that in determining the question whether a person is entitled to sue in forma pauperis under O. XXXIII, R. 1 of the Code of Civil Procedure, the subject-matter of the suit cannot be taken into consideration, even if the defendant admits a portion of the claim and is ready to place it at the petitioner's disposal, and, even if the case falls under the first part of the explanation to Rule 1. Any amount which is not actually in the petitioner's possession, and is not in his power or control at the date when the application was made cannot be taken into account in making the calculation for the purpose of determining his means. 10. We are of opinion, therefore, that the plaintiff-appellant is not possessed of sufficient means to enable him to pay the court-fee required for the memorandum of appeal in this Court. We accept the application and allow the plaintiff-appellant to appeal as a pauper under Order XLIV Rule 1 of the Code of Civil Procedure. We make no order as to costs.