JUDGMENT : Joseph Vithayathil, J. This appeal was referred to a Full Bench by the following order of reference: “This execution appeal raises an interesting question of limitation not covered by any decision here or elsewhere. On 10.7.1946 the District Court of Trivandrum passed a decree in favour of the respondent for a portion of the claim put in suit. He sought leave to prefer an appeal to the High Court in forma pauperis against the disallowed portion of the claim. That was not allowed and the order refusing leave was passed on 31.3.1950. However time was given for payment of the requisite court-fee and that was extended more than once. The respondent did not avail of the concession and his last application for further extension of time was dismissed on 3.7.1950. Thereafter on 4.9.1950 the execution petition giving rise to this appeal was filed and the judgment-debtor (the State) contended that the execution was barred by time as the applicatory provision was Cl. (1) of Art. 166, Travancore Limitation Act and not Cl. (2) as contended for on behalf of the decree-holder. The lower court accepted the decree-holder’s contention and held that the execution was not barred by limitation. The State has preferred this appeal and it was strenuously argued on its behalf that the lower court’s decision is clearly wrong. As stated earlier there is no direct authority bearing on the point but decisions favouring the opposing views can be found in the books. Some cases brought to our notice held that the order refusing leave to file the appeal in forma pauperis amounts to a decree. See for instance A.I.R. 1936 Mad. 101. A view is seen held in some cases that the words “where there has been an appeal” in relevant clause of the Article only mean where a memorandum of appeal has been presented in court and that it need not necessarily mean an admission thereof. See I.L.R. 16 Cal. 250. Whether after granting time for payment of court-fees, the final rejection can be made by a single Judge is also debatable. See A.I.R. 1935 All. 620 (F.B.). At the same time there are authorities which say that Cl. (2) of the Article can apply only when an appeal has been admitted and not otherwise. See A.I.R. 1934 Mad. 303; A.I.R.1938 Cal. 533 and A.I.R. 1951 All. 79 (F.B.). See A.I.R. 1935 All. 620 (F.B.). At the same time there are authorities which say that Cl. (2) of the Article can apply only when an appeal has been admitted and not otherwise. See A.I.R. 1934 Mad. 303; A.I.R.1938 Cal. 533 and A.I.R. 1951 All. 79 (F.B.). "In view of these conflicting opinions and in the absence of any direct ruling on the question we think it proper to place this case for decision by a Full Bench of this Court and we order accordingly”. 2. The question for decision in the appeal is whether it is Art. 166(1) of the Travancore Limitation Act (Art. 182(1) of the Indian Limitation Act) or Art. 166(2) - Art. 182(2) - that will apply to the case. If Art. 166(1) applies the period of limitation will have to be calculated from the date of the decree of the District Court, i.e., from 10.7.1946. If Art. 166(2) applies the period will have to be calculated from the date of the final decree or order of the High Court. Art. 166(2) will apply if there has been an appeal from the decree of the District Court. If has, therefore, to be decided whether there has been an appeal in this case. 3. What happened in the case was this:- The plaintiff applied in the High Court under O. XLIII R. 1, Travancore Code of Civil Procedure (O. XLIV R.1, Indian Code) on 29.11.1123 for permission to appeal as a pauper from the decree of the District Court. A memorandum of appeal was also filed along with the application, as required by O. XLIII R. 1 (O. XLIV R. 1). Copies of the judgment and decree of the District Court were also produced along with the memorandum of appeal. The application was disallowed by the High Court by its order dated 31.3.1950; but the applicant was allowed time to pay the requisite court fee. The order which was passed by a Single Judge of the High Court was to the following effect:- “Heard both sides. On perusing the judgment, I do not see that it is erroneous or unjust or against law. The permission sought for to file the appeal in forma pauperis is refused and the petition is dismissed. But if the appellant will pay the court fee due by 30th the June 1950 this will be registered and numbered as an appeal. On perusing the judgment, I do not see that it is erroneous or unjust or against law. The permission sought for to file the appeal in forma pauperis is refused and the petition is dismissed. But if the appellant will pay the court fee due by 30th the June 1950 this will be registered and numbered as an appeal. He will not get any extension of time”. On 21.6.1950 the plaintiff applied for further time to pay the court fee. The application was dismissed on 22.6.1950. A second application for the same purpose was made on 30.6.1950 and that also was dismissed on 3.7.1950. The memorandum of appeal was not registered or numbered but no order was passed rejecting it. The question is whether, in the circumstances, it can be said that there has been an appeal from the decree of the District Court. If it is held that there has been an appeal the appeal must be deemed to be pending even now unless the order dated 3.7.1950 refusing the prayer for extension of time for payment of court fee has the effect of dismissing the appeal. 4. It is argued for the appellant that it cannot be said that an appeal has been filed in this case, that the presentation of an application under O. XLIII R. 1, Travancore Code of Civil Procedure (O. XLIV R. 1, Indian Code) accompanied by a memorandum of appeal does not amount to filing an appeal, that it is only if the application is allowed that an appeal will be deemed to have been filed on the date of the presentation of the application and that if the application is rejected it has to be taken that no appeal has been filed. It is also argued that the direction in the order dated 31.3.1950 that if the applicant would pay court fee within a specified time the appeal would be registered and numbered did not amount to admitting the appeal and that so long as the direction was not complied with and the appeal was not registered it cannot be said that the appeal has been admitted. 5. 5. According to the respondent, when he applied under O. XLIII R. 1 C.P.C. (O. XLIV R. 1) what he really did was to file an appeal and to apply for permission to prefer that appeal without payment of the requisite court fee; and the fact that that permission was not granted does not mean that an appeal has not been filed in the case although no court fee was paid on the memorandum of appeal. It is also argued that under S.149, C.P.C. the court has power to grant time to pay the requisite court fee and that non-payment of court fee is not one of the grounds for rejecting a memorandum of appeal under O. XLI R. 3. Under O. XXXIII R. 7(3) of the Travancore Code of Civil Procedure, in the case of an application for permission to sue as pauper the court may direct that the application be filed as a plaint on the applicant paying the requisite court fee within such time as the court may allow. It is argued that this provision will apply to an application for permission to appeal as a pauper by virtue of O. XLIII R.1 (Travancore) which says that the provisions relating to suits by paupers will apply to an application for permission to appeal as a pauper in so far as those provisions are applicable. It is, therefore, contended that, although the application for permission to appeal as a pauper was disallowed by the order dated 31.3.1950, the memorandum of appeal was still before court and the appeal must be deed to be still pending unless the order dated 3.7.1950 has the effect of dismissing it for non-payment of court fee. It is also contended that a Single Judge had no power to dismiss the appeal. If the period of limitation is calculated either from 31.3.1950 or from 3.7.1950 the execution petition, filed on 4.9.1950, will be within time. If the appeal is deemed to be still pending, then also there can be no bar of limitation for the execution of the decree. 6. As stated already, the real question for decision is whether there has been an appeal in this case. If the appeal is deemed to be still pending, then also there can be no bar of limitation for the execution of the decree. 6. As stated already, the real question for decision is whether there has been an appeal in this case. If the filing of an application under O. XLIII R. 1, Travancore Code of Civil Procedure (O. XLIV R. 1; Indian Code) for permission to appeal as a pauper accompanied by a memorandum of appeal amounts to filing an appeal without payment of court fee it has to be taken that there has been an appeal in this case. So far as an application for permission to sue as a pauper is concerned, O. XXXIII R. 8 provides: “Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court fee (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit”. The whole of this provision cannot apply to an application for permission to appeal as a pauper. Under O. XXXIII R. 8 it is the application that is registered and numbered as a suit and that will be the plaint in the suit. In the case of an application for permission to appeal as a pauper a separate memorandum of appeal has to be filed along with the application and if permission is granted the application will not be registered and numbered as an appeal. It is the memorandum of appeal that is filed along with the application that will be registered and numbered as an appeal. When an application to sue as a pauper is allowed the suit will be deemed to have been instituted when the application was presented as provided in the explanation to S. 3 of the Limitation Act. That explanation is to the following effect : “A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made ......................”. The same rule applies to pauper appeals also. That explanation is to the following effect : “A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made ......................”. The same rule applies to pauper appeals also. Both in the case of pauper suits and pauper appeals there is no difficulty if the application for permission to sue or to appeal as a pauper, as the case may be, is allowed. The difficulty arises when the application is not allowed. The application may be rejected unconditionally, or the applicant may be allowed to pay the requisite court fee within a time to be fixed by the court, and he may not avail himself that opportunity. The question is whether in such cases it can be said that there has been a suit instituted or an appeal preferred. 7. In the case of an application for permission to sue as a pauper there is divergence of opinion on the question whether the filing of the application will amount to filing of the plaint also, and whether after the application is rejected the court can allow the applicant, under S. 149 C.P.C. to pay the requisite court fee. So far as this court is concerned O. XXXIII R. 7 sub-r. (3) expressly empowers the court “to direct that the application be filed as a plaint on the applicant paying the requisite court fee within such time as the court may allow”. The Travancore Code of Civil Procedure also contained the same provision. There is no such provision in the Indian Code. But the decisions relating to this point have some bearing on the question whether the filing of an application for permission to sue or to appeal as a pauper amounts to filing the suit or the appeal as the case may be. It is therefore, useful to refer to them. 8. In Stuart Skinner Alias Nawab Mirza v. William Orde (I.L.R. 2 All. 241 P.C.) a person applied for leave to sue as a pauper, but pending enquiry into his pauperism he obtained funds which enabled him to pay the requisite court fee. On payment of the court fee the application was numbered and registered as a plaint. 8. In Stuart Skinner Alias Nawab Mirza v. William Orde (I.L.R. 2 All. 241 P.C.) a person applied for leave to sue as a pauper, but pending enquiry into his pauperism he obtained funds which enabled him to pay the requisite court fee. On payment of the court fee the application was numbered and registered as a plaint. The question arose whether the suit should be deemed to have been instituted on the date when the pauper application was filed or on the date on which court fee was paid. The Privy Council held that the suit must be deemed to have been instituted on the date on which the pauper application was filed. Their Lordships took the view that the application “contains in itself all the particulars the Statute requires in a plaint, and plus this, a prayer that the plaintiff may be allowed to sue in forma pauperis”. Their Lordships observed:- “The Act provides what shall happen if the prayer of the petition be granted by S. 308. It also provides by S. 310 what shall be the effect of a rejection of the petition. But this case is one which the Statute has not in terms provided for. The intention of the Statute evidently was that, unless the petition was rejected, as it contained all the materials of the plaint, it should operate as a plaint without the necessity of filing a new one .......................... The petition of plaint was placed upon the file and numbered on the 19th July 1873 and this is the plaint that is allowed to go on. Although the analogy is not perfect, what has happened is not at all unlike that which commonly happens in practice in the Indian courts, that a wrong stamp is put upon the plaint originally and the proper stamp is afterwards affixed. The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it”. 9. In Totaram v. Dattu (A.I.R.1943 Bom.143) before an application for permission to sue in forma pauperis was allowed the court appointed a commissioner under O. XXXIX, R. 7 C.P.C. for the preservation of the subject-matter of the suit. It was contended that the court had no power to do so. 9. In Totaram v. Dattu (A.I.R.1943 Bom.143) before an application for permission to sue in forma pauperis was allowed the court appointed a commissioner under O. XXXIX, R. 7 C.P.C. for the preservation of the subject-matter of the suit. It was contended that the court had no power to do so. The argument was that, before the application was allowed, it could not be said that there was a suit in existence. This contention was repelled by the High Court, Beaumont, C.J. observed: “The plaintiff in this case presented a plaint which was taken on the file, and which contained a petition for leave to sue as a pauper. It seems to me that that plaint institutes the suit, whether the application to sue as a pauper is subsequently granted or not. The plaintiffs may subsequently elect not to proceed with their application, or their application may fail. In either of those events it seems to me that the suit has been properly instituted by the plaint, and it will be proceeded with on that plaint in the ordinary course on the plaintiff paying the court fees. In practice a plaintiff is usually given further time to pay court fees after his application to sue as a pauper has failed. If the application succeeds, then, no doubt, the petition is to be deemed to be the plaint, but R. 8 does not provide that it is the plaint. I entertain no doubt myself that the plaint, whether it consists of the original plaint, or of the petition deemed to be a plaint, takes effect from the date when the plaint and the petition were presented. That has recently been held to be the correct view of the matter by Gentle, J. of the Madras High Court in I.L.R. (1938) Madras 1060 (Chidambaram v. Nataraja Mudaliar) where he followed the view expressed by the Privy Council in VI Indian Appeals 126 (2 All. 241)”. 10. The same view was taken by Lokur, J. in Mahadev Gopal v. Bhikaji Vishram (A.I.R. 1943 Bom.292). The learned Judge said:- “An application under O. XXXIII, R. 2, C.P.C. for permission to sue as a pauper is required to contain particulars required in regard to plaints in suits. 241)”. 10. The same view was taken by Lokur, J. in Mahadev Gopal v. Bhikaji Vishram (A.I.R. 1943 Bom.292). The learned Judge said:- “An application under O. XXXIII, R. 2, C.P.C. for permission to sue as a pauper is required to contain particulars required in regard to plaints in suits. It has to be signed and verified in the manner prescribed for the signing and verification of pleadings by the Court, and is capable of being itself treated as a plaint. If the application is granted and the applicant is allowed to sue as a pauper, then the application becomes a plaint in virtue of the provisions of O. XXXIII, R. 8 and would be numbered and registered. Even before deciding whether to grant the application or not, the court may, at any time during the pendency of the proceedings, treat the application as a plaint and allow the applicant to pay the requisite court fees and give up his request to be allowed to sue as a pauper, as in the Privy Council case in 6 Indian Appeals 126 (2 All. 241). Even if the court decides to reject the application under O. XXXIII, R. 5 or to refuse to allow the applicant to sue as a pauper under O. XXXIII, R. 7 it may treat the application as an unstamped plaint and either before or at the time of passing the order under R. 5 or R. 7 it may in its discretion under S. 149 allow the applicant time to pay the requisite court fees, and upon such payment within the time allowed, number and register the plaint. But in doing so, the court should have regard to the provisions of O. XXXIII, R. 15 and make the payment of the costs mentioned therein a condition precedent. In all these cases, for the purposes of limitation, the suit will be deemed to have been instituted on the day on which the application for leave to sue as a pauper is made. In all these cases, for the purposes of limitation, the suit will be deemed to have been instituted on the day on which the application for leave to sue as a pauper is made. But if once the court passes an order rejecting the application under R. 5 or refusing to allow the applicant to sue as a pauper under R. 7, without keeping the application alive as an unstamped plaint and granting the applicant time to pay the requisite court fees, the proceedings come to an end, and it has no power to do so by a separate and subsequent order. In that case the only remedy of the applicant is to file a regular suit under O. XXXIII, R. 15. In that case for the purposes of limitation the suit must be taken as instituted on the day it is actually filed and he cannot avail himself of the time spent in the pauper proceedings to save the bar of limitation”. 11. In Bai Sakri v. Bani Dhani (A.I.R. 1948 Bom. 139) it was held that, where an application has been made for leave to sue in forma pauperis, a receiver can be appointed for the suit property pending the decision of the application. Macklin, J. who wrote the Judgment in that case did not, however, decide the question whether the filing of the application for leave to sue as a pauper would amount to filing of the suit. The decision was based on the interpretation of O. XL R. 1, Code of Civil Procedure. The learned Judge, however, indicated a strong preference for the view taken by Beaumont, C.J. in A.I.R. 1943 Bom. 143. 12. In Chidambaram v. Nataraja (A.I.R. 1939 Mad. 80) referred to in A.I.R. 1943 Bom.143, Gentle, J. held on the authority of the decision of the Privy Council in 2 All. 241 that on presentation of the application for permission to sue as a pauper the suit must be deemed to have been instituted and that therefore the court has power to appoint a commissioner to take an inventory of properties even before the application is allowed. The same view was taken in Dhaneswar Nath Jewari v. Chanshyam Dar Misra (A.I.R. 1940 All. 185). 13. Bank of Behar v. Ram Chanderji (A.I.R. 1929 Pat. The same view was taken in Dhaneswar Nath Jewari v. Chanshyam Dar Misra (A.I.R. 1940 All. 185). 13. Bank of Behar v. Ram Chanderji (A.I.R. 1929 Pat. 687) was a case in which the application of the plaintiffs to sue as paupers was refused by the court, but they were allowed to proceed with the suit on payment of the requisite court fee. The court fee was paid within the time fixed by the court. The suit would be barred on the date on which the court fee was paid. It was contended that the suit must be deemed to have been instituted on the date on which court fee was paid. This contention was repelled by the court. Jwala Prasad, J. observed:- “An application to sue as a pauper contains an unstamped plaint and the court can under the power vested in it by S. 149, C.P.C. permit the requisite stamp to be paid thereon within a time fixed by it and after it has been done the unstamped plaint will be considered to have been validly presented on proper stamp on the date when it was originally filed”. The same view was taken by the Calcutta High Court in Jagadeswari Devi v. Tinkarhi Bibi (A.I.R. 1936 Cal. 28) and Kali Dassi v. Santosh Kumar (A.I.R. 1938 Cal. 730). 14. Conflicting decisions on the question were discussed by Panigrahi, J. in Jinatun Nisa Bibi v. Indrakun Nisa (A.I.R. 1950 Orissa 183) and it was held in that case that an application to sue as a pauper is a composite document consisting of an unstamped plaint and an application for permission to sue in forma pauperis, that if the application is rejected the plaint still remains and the court may in its discretion allow the petitioner to pay the requisite court fee and that in such a case the suit should be deemed to have been instituted on the date of presentation of the application. 15. A contrary view was taken in the following cases: viz. Chunnamal v. Bhagwat Kishore (A.I.R. 1936 All. 584 F.B.), Vaman Rao v. Pranlal (A.I.R. 1944 Bom. 63), Khatijanbai v. Nurmohamed (A.I.R. 1929 Sind 136), Purna Chandra Chabri v. Tara Prosad Maiti (38 I.C. 600 Cal.), Nur Muhamed v. Moulvi Jamil Ahamed (52 I.C. 688 All.), Sudhir Kumar Choudhury v. Jaganath Marvari (A.I.R. 1935 Pat. 193) and Rama Iyer v. Subramonia Iyer (24 T.L.J. 1026). 584 F.B.), Vaman Rao v. Pranlal (A.I.R. 1944 Bom. 63), Khatijanbai v. Nurmohamed (A.I.R. 1929 Sind 136), Purna Chandra Chabri v. Tara Prosad Maiti (38 I.C. 600 Cal.), Nur Muhamed v. Moulvi Jamil Ahamed (52 I.C. 688 All.), Sudhir Kumar Choudhury v. Jaganath Marvari (A.I.R. 1935 Pat. 193) and Rama Iyer v. Subramonia Iyer (24 T.L.J. 1026). In 1936 All. 584 the two questions referred to the Full Bench for decision were: (1) whether while rejecting the application for permission to sue as a pauper the court can under S.149 C.P.C. allow the applicant to pay the requisite court fee and treat the application as a plaint and (2) whether after rejecting the application the court can by a separate and subsequent order allow the applicant to pay the requisite court fee and treat the application as a plaint. The Full Bench held (Allsop, J. dissenting) that while rejecting under O. XXXIII R. 7(3) an application for permission to sue as a pauper the court cannot under S. 149 allow the applicant to pay the requisite court fee and treat the application as a plaint, but that if the application is rejected under O. XXXIII R. 5 the court has power to allow the applicant to pay the requisite court fee and treat the application as a plaint. On the second question the Full Bench held that in neither case could the court by a separate and subsequent order allow the applicant to pay the requisite court fee under S. 149 and treat the application as a plaint. The learned Judges negatived the contention that an application for permission to sue as a pauper should be regarded as a composite document, both a plaint and an application, and that on the application being rejected there would still remain the plaint to be proceeded with. This view was followed by Sen, J. in A.I.R. 1944 Bom. 63. No reference was, however, made in that case to the decisions in A.I.R. 1943 Bom. 143 and 292 already referred to. 16. In A.I.R. 1929 Sind 136, it was held that before the court grants permission to the applicant to file the suit in forma pauperis it cannot be said that there is a suit before the court. 63. No reference was, however, made in that case to the decisions in A.I.R. 1943 Bom. 143 and 292 already referred to. 16. In A.I.R. 1929 Sind 136, it was held that before the court grants permission to the applicant to file the suit in forma pauperis it cannot be said that there is a suit before the court. It was, therefore, held that the provisions of O.XXII, Code of Civil Procedure, relating to the bringing on record the legal representatives of parties to a suit dying during the pendency of the suit would not apply to an application for permission to sue in forma pauperis. 17. The same view was taken by the Calcutta High Court in 38 I.C. 600. It was held in that case that before the application is allowed the court has no jurisdiction to order an attachment before judgment. In 52 I.C. 688 also, it was held that an application for leave to sue as a pauper is not a plaint, that it reaches the stage of a plaint only when the application is granted and that, therefore, the court has no jurisdiction to return the application for presentation to the proper court. In A.I.R. 1935 Pat. 193, the Patna High Court held that if the application for permission to sue as a pauper is rejected, the only remedy of the applicant is that provided in O. XXXIII R. 15, viz., to institute a fresh suit after paying the costs of the State and the opposite party. A.I.R. 1922 Pat. 637 was not followed in this case. 18. In 24 T.L.J. 1026 it was held by the Travancore High Court that until the application to sue in forma pauperis is granted there is no suit before the court and that, therefore, the court has no power to make an order appointing a commission for the examination of accounts. 19. In Padmanabha Pillai v. Subramonian Pillai (1952 K.L.T. 535) this court held that even though in a case in which permission to sue in forma pauperis is not granted it cannot be said that there is a suit before court the legal representative of the applicant who dies during the pendency of the application can be allowed to continue the suit on payment of court fee. 20. 20. So far as a pauper appeal is concerned, the position is not, as stated already, exactly similar to that of a pauper suit, in view of the fact that a separate memorandum of appeal has to be filed along with the application for permission to appeal as pauper. But, can it be said that the appeal has been filed when the memorandum of appeal was presented along with the application for permission to appeal as pauper? In Mt. Shahsadi v. Alakh Nath (A.I.R. 1935 All. 620 - 2 F.B.), an application for leave to appeal as a pauper which was filed after time was rejected by a Single Judge, but no separate order was passed on the memorandum of appeal. Subsequently, a petition was filed on behalf of the applicant for excusing the delay in filing the appeal. That application also was dismissed on the ground that there was no appeal before the court. Sulaiman, C.J. observed: “There is a distinction drawn between the institution of a suit by a pauper and the filing of an appeal by a person who is unable to pay the fee required for the memorandum of appeal. Under O. XXXIII there is only one application which is required to be filed and if that application is allowed, then under R. 8 it has to be numbered and registered and has to be deemed the plaint in the suit and the suit is then to proceed in all other respects as a suit instituted in the ordinary manner. On the other hand, if the application filed by the plaintiff is dismissed, there is no other document left before the court which could be proceeded with. On the other hand in O. XLIV there is a provision that a person entitled to prefer an appeal who is unable to pay the fee required for the memorandum of appeal may present an application accompanied by a memorandum of appeal and may be allowed to appeal as a pauper, etc. Thus two documents have to be filed; one is the application for leave to appeal as a pauper; the other is the memorandum of appeal itself. Thus two documents have to be filed; one is the application for leave to appeal as a pauper; the other is the memorandum of appeal itself. But O. XLIV, R. 1 does not require that the applicant should file copies of the decree and the judgment, which are necessary for ordinary appeals under O. XLI, R. 1 though an appellant, as in the present case, may file them also”. His Lordship further observed: “The second question referred to us is whether in spite of an order rejecting the application for leave to appeal in form pauperis, an appeal is deemed to be still pending so long as it is not rejected for being insufficiently stamped or is dismissed on the ground of limitation. In the present case it so happened that the applicant filed not only the memorandum of appeal along with his application for leave to appeal, but also filed certified copies of the decree and the judgment. It was, therefore, possible to treat his memorandum of appeal as an appeal preferred but without payment of proper court fees”. His Lordship then considered the effect of S. 149, Code of Civil Procedure, and said: “The document, therefore, which does not bear the full court fee is not necessarily a mere nullity and waste-paper which cannot be looked at and dealt with at all. Thus although the document is defective, its defect can be cured if the court exercises its discretion in favour of the person from whom fee is payable; and once the fee has been allowed to be paid the document has the same effect as if the fee had been paid at the time when the document was filed. In view of this addition in the Code a Bench of this court in 1918 All. 194 of Mohomed Farzant Ali v. Rahat Ali) laid down that the rejection of an application under O. XLIV, R. 1, C.P.C. for leave to appeal as a pauper is not the rejection of the appeal itself and it is, therefore, no ground for rejecting a subsequent application for permission to pay the full court fee on the appeal. 194 of Mohomed Farzant Ali v. Rahat Ali) laid down that the rejection of an application under O. XLIV, R. 1, C.P.C. for leave to appeal as a pauper is not the rejection of the appeal itself and it is, therefore, no ground for rejecting a subsequent application for permission to pay the full court fee on the appeal. This case has not so far been dissented from by any other Division Bench, and we are of the opinion that it laid down the correct law, if it be assumed that in that case the appellant had filed copies of the decree and the judgment along with the memorandum of appeal. If however copies of decree and judgment are not filed at all then the position is different”. His Lordship then observed: “So far as the deficiency in the amount of court fee paid is concerned, the position seems to be this. The learned Judge before whom it is sought to be presented may decline to receive the appeal altogether on the ground that it is insufficiently stamped. He would be perfectly justified in doing so, in view of the provisions of S. 6, Court Fees Act, under which no document of any kind chargeable in the first or second schedule of the Court Fees Act shall be filed, accepted or recorded in any court of justice or shall be received or furnished by any public officer unless in respect of such document the court fee has been paid in full. It is, therefore, open to a Single Judge to decline to receive the document which is insufficiently stamped on the ground that he cannot receive it. But where the document has been received and has been accepted as having been properly presented a Single Judge should not reject the document later on, on the ground of insufficiency of court fees unless the matter were within the jurisdiction of a Single Judge”. As to what the position will be if the copies of the decree and judgment are not filed along with the memorandum of appeal His Lordship observed as follows: “In such an event no appeal has really been preferred but only an application for leave to appeal has been made. If that application is granted, then there are no further requisites, and the applicant would not be called upon to furnish copies of the decree and judgment. If that application is granted, then there are no further requisites, and the applicant would not be called upon to furnish copies of the decree and judgment. But if the application is rejected, the whole matter falls through and there is no longer any appeal pending before the court. An appeal can only be preferred from a decree, and when the decree is not filed no appeal can be considered to be pending. The memorandum of appeal in such a case must be considered as a mere appendix to the application and the rejection of the application puts and end to the whole proceeding”. It has to be noted that, in the present case, copies of the judgment and the decree were produced along with the memorandum of appeal. 21. In Kanthimathi Ammal v. Ganesa Iyer (A.I.R. 1936 Mad. 101) Wadsworth, J. held that the rejection of the application to appeal in forma pauperis is in fact a rejection of the appeal itself and that it would amount to a decree within the definition of S. 2, Code of Civil Procedure. 22. Farran, C.J. discussed the question in the following manner in Bai Ful v. Desai Manorbhai (22 Bom. 849): “When presented the application and the memorandum of appeal were two separate documents and in this respect they differ from a petition to sue as a pauper which includes both the plaint, the allegations as to pauperism and the prayer to sue in forma pauperis. In the case of a petition to sue as a pauper this court has held that when the pauper petition is rejected under S. 409 the proceedings are at an end and the Judge has no power to allow the petition to be stamped as a plaint, S. 411 providing the only course open to the applicant, namely, to institute a suit in the ordinary manner. In proceedings under S. 592, when the Judge refuses leave to appeal as a pauper, he effectually deals with the pauper application; but does he necessarily thereby deal with the memorandum of appeal which accompanied it? I think not. The section does not say so. In proceedings under S. 592, when the Judge refuses leave to appeal as a pauper, he effectually deals with the pauper application; but does he necessarily thereby deal with the memorandum of appeal which accompanied it? I think not. The section does not say so. In my opinion, the rule laid down in the second division of S. 413 is not by reason of the dissimilarity of the proceedings and for another reason which I shall hereafter refer to, a rule applicable to pauper appeals, and the Judge has, I think, also a memorandum of appeal to deal with when he refuses the application for leave to appeal as a pauper. I see nothing in the Code to prevent his treating it as still a memorandum of appeal if the appellant on being refused leave to appeal as a pauper desires with the aid of borrowed funds or the assistance of friends to continue the appeal”. The other reason given by the learned Judge for this view is that if S. 413 applied to pauper appeals the result would be that in every case the appeal would be time-barred when the application is refused, and the applicant would have no chance to prefer a fresh appeal. Candy, J., the other learned Judge who took part in the decision did not agree with this view, and observed: “I do not think that the fact that when a would be appellant presents an application for leave to appeal as a pauper he presents with it a seperate memorandum of appeal (whereas a would be plaintiff asking for leave to sue as a pauper writes his application and plaint all in one) makes any difference. If the Legislature intended that on the court refusing to allow the would-be appellant to appeal as a pauper the court must dispose of the memorandum of appeal, which had been filed with the application, then nothing would have been easier than to enact provisions to that effect. No doubt the short period of limitation given for filing an appeal in a District Court must in most cases make an appeal time barred if the application to be allowed to file as a pauper is refused. This difficulty would hardly arise in the case of suits for which the period of limitation is longer. No doubt the short period of limitation given for filing an appeal in a District Court must in most cases make an appeal time barred if the application to be allowed to file as a pauper is refused. This difficulty would hardly arise in the case of suits for which the period of limitation is longer. But then it must be remembered that S. 5 of the Limitation Act does not apply to plaints whereas it does to appeals”. 23. In Sankararamakrishna Avadhanikal v. Venkitasubramonia Iyer (17 T.L.J. 477) the Travancore High Court held that even before an application for permission to appeal as a pauper is allowed the appellate court is competent to stay execution of the decree of the lower court. Bhoothalingam Iyer, J. observed: “O. XLIII, R. 1 which relates to pauper appeals contemplates presentation of two separate documents, viz., a memorandum of appeal and an application for leave to appeal as a pauper. The dismissal of the pauper application does not involve dismissal of the appeal. The appeal may still be regarded as an existing appeal if the appellant desires to continue it as an ordinary one by paying the court fee (Bai Ful v. Desai Manorbhai, 22 Bom. 849; Mohamed v. Rahat Ali, 40 All. 381; and Mahant Diyal Das v. Sunder Das, 65 I.C. 741). If the decree-holder’s contention be accepted it would lead to the anomalous result of leaving the pauper appellant without any remedy as regards stay of execution during the pendency of the pauper application - which could not surely have been in the contemplation of the legislature. My clear view is that once the pauper appeal is presented, the appellate court to which the appeal is preferred becomes seized of both the pauper application and the appeal, and it is, therefore, invested with the power to act under O. XL, R 5 (Travancore)”. 24. In Krishna Kaimal v. Parameswara Kaimal (1951 K.L.T. 416) this court held that as in the case of an application for permission to sue in forma pauperis if the applicant for permission to appeal as a pauper dies before the application is allowed his legal representative cannot be allowed to continue the application but that he may be allowed to pay the requisite court fee and to have the appeal registered as an ordinary appeal. In Musammat Baril v. Kishori Lal (17 All. In Musammat Baril v. Kishori Lal (17 All. L.J. 443) an application for leave to appeal in forma pauperis was rejected by the court. Thereupon the applicant made a fresh application that he might be allowed to pay the necessary court fee. By this time, the appeal had become barred by limitation. The court rejected the subsequent application also. The applicant sought leave to appeal to the Privy Council from this order. It was held that the order was not a final order passed on appeal. Richards, C.J. observed: “It was not an order passed on the appeal. The appeal had never been admitted. It was simply an application made to this court for the first time asking for leave to deposit court fee”. 25. The question was discussed by the Bombay High Court in Phaltan Bank v. Babu Rao (A.I.R.. 1954 Bom. 43). In that case a pauper appeal from a preliminary decree was preferred beyond 30 days, the period of limitation prescribed for preferring such an appeal but within 90 days which is the period prescribed for preferring an ordinary appeal. The fact that the appeal was filed beyond time was not noticed by the court and notice was issued to the respondent. When the respondent appeared it was brought to the attention of the court that the appeal was filed beyond time. The Court gave the appellants time to pay the requisite court fee but it was not paid within the time granted and the appeal was subsequently dismissed. The question that arose for consideration was what was the starting point of limitation for purposes of Art. 181 of the Limitation Act for applying for final decree. It was argued for the appellants that the rejection of the appeal for non-payment of court fee amounted to a decree and that the period of limitation should be calculated from that date. This contention was repelled by the High Court. Gajendragatkar, J. observed:- “Mr. Madhbavi however contents that even if we treat this order as an order rejecting the memorandum of appeal passed under S. 107, sub-s. 2 read with O. VII, R. 11, sub-s. (c) such an order amounts to a decree and if this order is a decree, it must follow that the decree of the lower appellate court is merged in this decree. Mr. Mr. Madhbavi’s argument is that the decree as defined under S. 2, sub-s. 2 is deemed to include rejection of the plaint and he suggests that rejection of a memorandum of appeal must also partake of the character of a decree because it has been passed by the appellate court in exercise of the powers under which a plaint is rejected by the trial court. If the rejection of a plaint under the provisions of O. VII, R. 11 amounts to a decree, there is no reason why the rejection of a memorandum of appeal should not amount to a decree. That in short is Mr. Madhbavi’s contention. We are unable to accept this contention. S. 2, sub-s. 2 defines a decree and in doing so it provides that the rejection of a plaint and the determination of any question within S. 47 or S. 144 shall be deemed to be a decree; it further provides that it shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. It seems to us difficult to accept Mr. Madhbavi’s contention because we do not think we can add to this definition other orders of adjudication on the ground that they are similar to the orders which are included in the definition itself. If legislature had intended that an order rejecting a memorandum of appeal should be included in the decree it would have been so easy for the legislature to make appropriate additions in the definition of the decree itself. It seems to us that it would not be open to the court to add to this definition any other kind of adjudications however similar they may appear to be to the adjudications which are expressly included in the definition”. The learned Judge took the view that the order rejecting a memorandum of appeal would in a sense amount to an order of dismissal for default. The learned Judge then proceeded:- “On the question as to whether the rejection of a memorandum of appeal for failure of the appellant to pay adequate court fee amounts to a decree or not, there is a conflict of judicial opinion. But, on the whole, it appears that the majority of the High Courts have taken the view that a rejection of the memorandum of appeal does not amount to a decree. But, on the whole, it appears that the majority of the High Courts have taken the view that a rejection of the memorandum of appeal does not amount to a decree. It is unnecessary to refer to these decisions in detail. It may be enough to state that the Full Benches of the Madras High Court - Kayambu Pillai in re 1941 Mad. 836 - F.B. - and the Nagpur High Court - Balaji Dhumanji v. Mt. Muktabai 1938 Nag. 122 F.B. - and the Division Benches of the Calcutta High Court - Jananadasundari Shaha v. Madhabchandri 1932 Cal. 482 - and the Oudh Chief Court - Jagdish Kumar v. Hari Kishen Das 1942 Oudh 362 - are in favour of the view which we have expressed. Lekha v. Bhanna 18 All. 101 F.B. can also be treated as supporting this view because it has been held in this case that an order rejecting the appeal on the ground that proper security was not furnished by the appellant as he was called upon to do does not amount to a decree. On the other hand, Gour Charan v. Mohun Sahu, 23 Pat. 635 and a Single Judge of the Calcutta High Court in Abdul Majid v. Amina Khatum 1942 Cal. 539 have held that an order rejecting the memorandum of appeal on the ground that it has not been properly stamped amounts to a decree. With respect, we do not agree with this latter view”. After referring to the three decisions of the Privy Council, viz. Batuk Nath v. Munni Dei (36 All. 284), Abdul Majid v. Jawahirlal (36 All. 350) and Abdulla Asgar Ali v. Ganesh Das (1933 P.C. 68), the learned Judge said:- “It would thus be noticed that the authority of the Privy Council is in support of the view that if an order has been made by the court of appeal rejecting the appeal on the ground that proper court fees have not been paid, the appeal virtually has not come before the court of appeal for disposal on the merits, but it has faded out for the reason that the preliminary steps to present the appeal before the appellate court properly and effectively were not taken by the appellant”. 26. 26. Another point to be considered in this connection is whether when a memorandum of appeal is rejected by the court on the ground that the requisite court fee has not been paid it can be said that there has been an appeal filed in the case. On this question also there is divergence of opinion. In some cases it has been held that when a memorandum of appeal is rejected for non-payment of court fee or on the ground that the appeal was filed out of time, it cannot be said that there has been an appeal for purposes of Art. 182(2) of the Indian Limitation Act. The contrary view has been taken in some other cases. 27. In Nagendra Nath v. Suresh (A.I.R. 1932 P.C. 165) Their Lordships of the Privy Council observed:- “There is no definition of appeal in the Civil Procedure Code but Their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent”. In that case, the appeal was not in proper form and the memorandum of appeal was insufficiently stamped. Yet, the appeal was admitted and was dismissed after being heard in due course. 28. In Akshoy Kumar Nandi v. Chunder Mohun Chathati (16 Cal. 250) the appeal was filed after time and was rejected on that ground. O’Kinealy and Trevelyan, JJ. held that there has been an appeal in the case and that it was not necessary that the appeal should have been admitted. Their Lordships observed: “We are, therefore, of opinion that the words ‘where there has been an appeal’ means where there has been an appeal in the ordinary sense and in the sense in which it is used in the other portions of the same Act (Limitation Act), viz. when a memorandum of appeal has been presented in the court”. To the same effect is the decision of the Allahabad High Court in Gulab Rai v. Mangli Lal (7 All. 42). In Rup Singh v. Mukhraj Singh (7 All. 887) it was held that an order rejecting an appeal on the ground of non-payment of court fee amounted to a decree. 29. To the same effect is the decision of the Allahabad High Court in Gulab Rai v. Mangli Lal (7 All. 42). In Rup Singh v. Mukhraj Singh (7 All. 887) it was held that an order rejecting an appeal on the ground of non-payment of court fee amounted to a decree. 29. In Abdulla v. Ganesh Das (A.I.R. 1933 P.C. 68) the legal representatives of the respondent applied for an order that the appeal had abated. The appellant applied for an order setting aside the abatement if it was found that the appeal had abated. The court held that the appeal had abated and also rejected the application of the appellant. It was contended that the period of limitation under Art. 182(2) should be calculated from the date of that order. Their Lordships accepted this contention. It was observed:- “Their Lordships think that when an order is judicially made by an appellate court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Art. 182(2) of the Act of 1908”. 30. Kameshwar v. Beni Madho (A.I.R. 1931 Pat. 422) was a case in which the appeal was dismissed on the ground that it was filed out of time. It was held that there has been an appeal. Kulwant Sahey, J. said:- “If the provisions of O. XL, R. 1 are complied with and a memorandum of appeal is presented to the court, such a presentation of a memorandum of appeal is preferring an appeal. Under R. 3, O. XLI the memorandum of appeal may be rejected on certain grounds. Limitation of the appeal under the Limitation Act is not one of the grounds upon which a memorandum of appeal is to be rejected. If the provisions of O. XLI, R. 1 are complied with then the appellate court is bound to receive the memorandum. The question as to whether the appeal is barred by limitation or not is a question which has to be decided by the court to which the appeal is preferred, and when that question is decided and it is found that the appeal is barred by limitation, then an order will be made or a decree will be passed dismissing the appeal. Such an order or decree will come within the provision of Art. 182, Cl. Such an order or decree will come within the provision of Art. 182, Cl. (2), Limitation Act and a fresh period of limitation will begin to run from the date of such order or decree”. Reliance was placed on 16 Cal. 250. 31. In Krishna Kant Prasad v. Radhey Singh (A.I.R.1938 Pat.79) a memorandum of appeal which was insufficiently stamped was admitted but was rejected after the parties were heard. Fazl Ali, J. distinguished 6 All. 438 on the ground that it was a case in which the appeal was not admitted and said:- “It appears that in the present case the appeal had been duly registered as appeal No. 18 of 1932 and the order of the appellate court rejecting the appeal was passed after notice to the parties and on hearing them. In these circumstances I think that the conditions requisite for the application of Cl. 2 of Art. 182 are satisfied and the execution is not barred”. 32. Basanta Kumar Roy v. Manjuri Dassi (74 I.C. 679 Cal.) was also a case in which the appeal was admitted and heard and was dismissed on the ground that proper court fee had not been paid on the memorandum of appeal. It was held that it could not be said that there was no appeal in the case. 33. In Batuk Nath v. Munni Dei (36 All. 284 P.C.) the appeal to the Privy Council was dismissed for want of prosecution. It was held that there was no appeal. To the same effect is the decision of the Privy Council in Abdul Majid v. Jawahirlal (36 All. 350 P.C.). In the first case the appeal was dismissed under R. 5 of the Order in Council which provided that if the appellant or his agent did not take effectual steps for the prosecution of the appeal for a particular period the appeal would stand dismissed without further order. Sir John Edge, in delivering the judgment of the Board said:- “There was however no order of His Majesty in Council dismissing the appeal, nor was it necessary that any such order should be made in the appeal. Under R. 5 of the Order in Council of 13th June 1853 the appellant or his agent not having taken effectual steps for the prosecution of the appeal the appeal stood dismissed without further order”. Under R. 5 of the Order in Council of 13th June 1853 the appellant or his agent not having taken effectual steps for the prosecution of the appeal the appeal stood dismissed without further order”. In the second case it is not clear whether the dismissal was under the Order in Council. Lord Moulton observed:- “The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It will be recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that, therefore, he was in the same position as if he had not appealed at all”. These two decisions were considered by the Privy Council in A.I.R. 1933 P.C. 68 already referred to. 34. In Dianat-Ullah Beg v. Majid Ali Sha (6 All. 438), referred to in 1938 Pat. 79 the appeal was rejected on the ground of deficiency of court fee. Coldfield, J., held:- “We find that the application for appeal was presented to the High Court by the plaintiff, but not admitted on the ground of deficiency of the court fees. We cannot hold that there has, in such circumstances, been an appeal or a final decree or order of an appellate court within the meaning of Art. 179(2) [present Art. 182(27)] of the Limitation Act so as to give a period from which limitation for execution of the decree can run”. 35. Bava Reddi v. Gopala Rao (A.I.R. 1934 Mad. 303) was a case in which the appeal was filed out of time. Application to excuse the delay in filing the appeal was dismissed and the appeal also was dismissed. Madhavan Nair, J., held that since the appeal memorandum was rejected as being out of time it could not be said that there has been an appeal. The learned Judge distinguished the Privy Council decision in Nagendra Nath v. Suresh (A.I.R. 1932 P.C. 165) on the ground that the appeal in that case had been admitted whereas in the case before him the appeal had not been admitted. The learned Judge distinguished the Privy Council decision in Nagendra Nath v. Suresh (A.I.R. 1932 P.C. 165) on the ground that the appeal in that case had been admitted whereas in the case before him the appeal had not been admitted. The learned Judge said:- “If the contention of the decree-holder were to prevail any decree-holder who has allowed his decree to be barred by limitation may circumvent the rule by filing an appeal and getting it rejected for not satisfactorily explaining the delay. I can see no satisfactory answer to this objection. If possible such an interpretation should be put on the words ‘where there has been an appeal’ as would enable us to avoid the above conclusion”. 36. The question was discussed by Mukherjea, J., in Bodyot Coomar v. Mathura Kanta (A.I.R. 1938 Cal. 533). That was a case in which the memorandum of appeal was rejected for non-payment of deficit court fee. It was neither registered nor numbered as an appeal. The court allowed time to pay the deficit court fee. But since the court fee was not paid within the time allowed the memorandum of appeal was rejected. His Lordship observed:- “In my opinion this order has not the effect of a decree and it did not deal judicially with the appeal at all which had not yet come into existence. It amounted merely to this, that the appellant had not complied with the conditions under which alone he was competent to file an appeal and, therefore, the position was exactly the same as if no appeal had been filed”. 37. A Full Bench of the Allahabad High Court considered the question in Hari Har Prasad Singh v. Bein Chand (A.I.R. 1951 All. 79). The Full Bench held that a memorandum of appeal which is defective for want of proper court fee and is not admitted and is rejected on that ground cannot be treated as an appeal as the court refused to admit or register it as an appeal. Bhargava, J., pointed out the distinction between a memorandum of appeal and an appeal under the Code of Civil Procedure. O. XLI R. 1 prescribes the manner in which an appeal should be preferred. It provides that the appeal should be preferred in the form of memorandum. Bhargava, J., pointed out the distinction between a memorandum of appeal and an appeal under the Code of Civil Procedure. O. XLI R. 1 prescribes the manner in which an appeal should be preferred. It provides that the appeal should be preferred in the form of memorandum. R. 3 sub-r. 1 of that Order provides for the rejection or return of a memorandum of appeal if it is not properly drawn up. If the memorandum of appeal is properly drawn up it is admitted, and R. 9 provides that where the memorandum of appeal is admitted the appeal shall be registered in a book to be kept for the purpose. In the subsequent Rules there is no reference to the memorandum of appeal but the reference is to the appeal. The learned Judge then considered the effect of S.4 of the Court Fees Act. Even if the memorandum of appeal is drawn up in the manner prescribed by O. XLI R. 1 if it does not bear the proper fee payable in respect thereof under the provisions of the Court Fees Act S. 4 of that Act provides that it shall not be received by the court and that it shall not be filed. An exception, however, is made to this rule by the provision contained in S. 149 of the Code of Civil Procedure which empowers the court to allow time for the payment of the court fee. Referring to S. 149 the learned Judge said: “In view of this provision, when an unstamped or an insufficiently stamped memorandum of appeal is presented before a High Court, the same may be received and retained by the court for the time being and the appellant may, in the discretion of the court, be allowed to pay the whole or part of such court fee at a later date, and upon such payment the memorandum of appeal shall have the same force and effect as if such fee had been paid in the first instance that is to say, it would be treated as a duly stamped memorandum of appeal which could be received, filed, exhibited and recorded in court. There is nothing in S. 149 of the Code which over-rides the provisions of S. 4, Court Fees Act; it merely postpones the operation of that section for the being. There is nothing in S. 149 of the Code which over-rides the provisions of S. 4, Court Fees Act; it merely postpones the operation of that section for the being. If the whole or part of the requisite court fee is not paid within the time allowed by the court, S.149 of the Code ceases to have effect, and the court is precluded from filing or recording an unstamped or insufficiently stamped memorandum of appeal in court. The receipt of the memorandum of appeal for the purposes of allowing time will be of no further consequence and the memorandum of appeal will have to be returned”. The learned Judge proceeded:- “The reception of the memorandum of appeal for a specific purpose does not mean that the court has received the same also for the purpose of filing or recording it in court which would be in direct contravention of the provisions of S. 4 of the Act. As an unstamped or insufficiently stamped memorandum of appeal could not be received for being filed or recorded in court it could not have been admitted. There is no automatic admission of a memorandum of appeal if it is received for allowing time under S. 149. In the present case the memorandum of appeal was, in fact, rejected. Hence it cannot be deemed to have been admitted .................... The order rejecting the memorandum of appeal was obviously made under S. 4, Court Fees Act, which was undoubtedly applicable. If the appeal had been admitted it must have been registered; and if it had been registered it would have been cognisable by a Bench, and a Single Judge could not have made any order thereon. The fact that a Single Judge made an order rejecting the memorandum of appeal as being insufficiently stamped goes to show that it was never admitted. Consequently, even if a memorandum of appeal is drawn up in the manner laid down in the Code of Civil Procedure, it cannot be received by any High Court for being filed or recorded in any case coming before such court if it is unstamped or insufficiently stamped; and unless the memorandum of appeal is filed or recorded in court it cannot be said that an appeal has been preferred to the court”. Agarwala, J. who agreed with this view observed that there is a distinction between a case in which a memorandum of appeal has been returned before it is admitted or registered and a case in which a memorandum of appeal though insufficiently stamped has been by mistake or by inadvertence registered and admitted and then rejected under S. 28, Court Fees Act. The learned Judge said:- “In the latter case there has been an appeal with a final order thereupon. In the former case there has been neither an appeal nor a final order thereupon”. 38. This Court considered the question in Kochukoshi v. Kunju Pillai, 1952 K.L.T. 423 (I.L.R. 1952 T.C. 477). It was held in that case that where an appeal was admitted and registered but was eventually dismissed for the appellant’s failure to make good the deficit court fee on the memorandum of appeal within the time fixed by the court, it should be taken that there has been an appeal within the meaning of Cl. 2 of Art. 182 of the Limitation Act. Sankaran, J. observed:- “If the court refuses to accept the memorandum of appeal or returns or rejects the same for the reason of the non-payment of the court fee due on it the result will undoubtedly be that there has been no appeal”. His Lordship did not agree with the view expressed by Bhargava, J. in A.I.R. 1951 All. 79 that the memorandum of appeal must be deemed to have been received merely for the purpose of enabling the party to pay the deficit court fee within a time to be fixed by the court. After referring to some of the decisions bearing on the point His Lordship said:- “Thus the position is well settled that the proper procedure to be followed by a court on finding that the memorandum of appeal presented to it is not properly stamped is to refuse to admit and register it unless and until the required fee is paid up by the party concerned. Similarly if a memorandum of appeal is seen to be clearly out of time the court has to refuse to admit it unless and until the party has obtained an order condoning the delay. Similarly if a memorandum of appeal is seen to be clearly out of time the court has to refuse to admit it unless and until the party has obtained an order condoning the delay. But if due to mistake or inadvertance these defects are not noticed and the memorandum of appeal is admitted and registered the consequence is that there is an appeal as contemplated by Cl. 2 of Art. 182 of the Limitation Act”. 39. The above review of the case law relating to the questions that directly or indirectly arise for consideration in this case shows that there is sharp difference of opinion on all those questions. So far as the main question is concerned the difference of opinion is based on this: According to one view, an application for permission to sue in forma pauperis is a composite document containing the plaint and a petition to allow the applicant to institute the suit without paying the requisite court fee. Therefore, the filing of the application amounts to filing of the plaint also. Even if the prayer for allowing the applicant to institute the suit without paying court fee is rejected the plaint will still be before the court and the applicant may be allowed by the court to pay the court fee payable on it. Similarly the filing of an application for permission to appeal as a pauper amounts to filing the appeal with an application to permit the appellant to file it without paying the requisite court fee. The rejection of the application does not amount to rejection of the appeal itself. The appeal may be rejected for non-payment of court fee or the appellant may be granted time to pay the requisite court fee. 40. The other view is that an application for permission to sue in forma pauperis is only an application although it should contain the particulars in regard to the plaint, and that it is only when the application is allowed by the court that it will be deemed to be the plaint in the suit in which case the suit will be deemed to have been instituted on the date of the presentation of the application. If the application is rejected the proceedings come to an end and there will be no plaint before the court to be either admitted or rejected. If the application is rejected the proceedings come to an end and there will be no plaint before the court to be either admitted or rejected. In that case it cannot be said that a plaint has been filed in court. Similarly in the case of an application for permission to appeal as a pauper there is only an application to be dealt with by the court although the application has to be accompanied by a memorandum of appeal just as the application for permission to sue as a pauper has to contain the particulars of the plaint. If the application is allowed the memorandum of appeal will be deemed to have been filed on the date on which the application was presented. If the application is rejected the proceedings come to an end and there will be no appeal before the court to be disposed of by a decree or order. 41. The question whether the filing of an application under O. XXXIII R.2 for permission to sue as a pauper amounts to filing the plaint also and whether even in a case in which the application is rejected it should be taken that there has been a plaint filed in court does not directly arise for consideration in this appeal. As stated already, the provisions of O. XLIV R. 1 (Indian Code of Civil Procedure) relating to pauper appeals are not exactly the same as those of O. XXXIII R. 2 relating to pauper suits. In the case of a pauper appeal a memorandum of appeal has to be filed along with the application while in the case of a pauper suit the application itself should contain the particulars required in regard to plaints in suits. Yet, in view of the provision in O. XLIV R.1 (Indian Code) that the provisions relating to pauper suits will apply to pauper appeals also in so far as those provisions are applicable, it is necessary to consider whether the filing of an application under O. XXXIII R. 2 for permission to sue in forma pauperis amounts to filing the pliant also and whether even if the application is rejected it should be taken that there has been a pliant filed in the case. On this question we are inclined to take the view that in a case in which the application for permission to sue as a pauper is rejected it cannot be said that a plaint has been filed in the case. The wording of O. XXXIII R.2 does not support the view that the filing of an application under that rule amounts to filing the plaint also. O. XXXIII R.2 only says that the application “shall contain the particulars required in regard to plaints in suits” and that it “shall be signed and verified in the manner prescribed for signing and verification of pleadings.” In Rr.3 to 7 the person who files the application is referred to as the “applicant” and not the plaintiff and the document filed in court as “application”. R. 8 says that “when the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the case”. The words used are “shall be deemed the plaint in the case”. If the application is rejected there is nothing further to be done in the case. If what the framers of the Code intended was that even when the application is rejected there will be a plaint before the court to be dealt with by the court we would have expected some provision in O. XXXIII relating to the procedure to be adopted when the application is rejected. There is provision only with regard to the procedure to be followed if the application is allowed. It is true that, under O.XXXIII R.8 of the Travancore Code of Civil Procedure, the court may, instead of rejecting the application, “direct that the application be filed as a plaint on the applicant paying the requisite court fee within such time as the court may allow”. But that does not mean that there has already been a plaint filed in the case. On the other hand, that provision only shows that there has been no plaint filed in court. The court is given the power to direct that the application be filed as a plaint. It is by virtue of the direction of the court that the application becomes a plaint when the requisite court fee is paid. On the other hand, that provision only shows that there has been no plaint filed in court. The court is given the power to direct that the application be filed as a plaint. It is by virtue of the direction of the court that the application becomes a plaint when the requisite court fee is paid. In that case, the plaint will be deemed to have been filed on the date of the presentation of the application as in the case in which the application is allowed by the court. Under the Indian Code of Civil Procedure also which does not contain a provision like the one contained in the Travancore Code of Civil Procedure the predominance of opinion is that by virtue of S. 149 C.P.C. the court has got the power, while disallowing the prayer for permission to sue as a pauper, to allow the applicant to pay the requisite court fee and to have the application filed as a plaint. In that case also the application becomes a plaint by reason of the order of the court. It is not a case of a plaint already filed being continued as such. If the application is rejected unconditionally it cannot be said that there is still a plaint before the court to be dealt with by the court by a separate order. On this question we are in agreement, if we may say so with respect, with the view taken by the Full Bench of the Allahabad High Court in Chunnamal v. Bhagwat Kishore (A.I.R. 1936 All. 584). 42. It does not follow from this that, in our opinion, the court has no power, before allowing the application for permission to sue as a pauper, to order an attachment before judgment or to appoint a receiver or pass other orders necessary for the preservation of the subject matter of the proposed suit. That question does not arise for decision in this appeal. The answer to that question does not depend solely on the answer to the question whether before the application for permission to sue as a pauper is allowed it can be said that there is a plaint filed in the case. One view that may be taken is that the application is a potential plaint. The answer to that question does not depend solely on the answer to the question whether before the application for permission to sue as a pauper is allowed it can be said that there is a plaint filed in the case. One view that may be taken is that the application is a potential plaint. Another is that the court has inherent jurisdiction to pass such orders in anticipation of an order allowing the application to sue in forma pauperis in which case the plaint will be deemed to have been instituted on the date on which the application was filed. 43. If the rejection of the application for permission to sue as a pauper amounts to refusing the prayer for such permission and also rejecting the plaint for non-payment of court fee the order will amount to a decree so far as the rejection of the plaint is concerned. According to the definition of ‘decree' in S. 2 sub-s. (2), Code of Civil Procedure, it ‘shall be deemed to include the rejection of a plaint”. Under order VII R. 11, the plaint shall be rejected "when the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the court to supply the requisite stamp paper within a time to be fixed by the court fails to do so”. We do not think that the rejection of an application under O. XXXIII R. 2 for permission to sue as a pauper amounts to a decree. For these reasons we take the view that in a case in which an application for permission to sue in forma pauperis is rejected it cannot be said that there has been a plaint filed in the case. The same will be the case even if the court directs that the application be filed as a plaint on the applicant paying the requisite court fee within the time allowed by the court and the applicant does not comply with that direction. In the latter case the application is not converted into a plaint. It is only in case the application is allowed or is converted into a plaint by virtue of the order of the court that it can be said that there is a plaint filed in the case in which case the plaint will be deemed to have been filed on the date of the presentation of the application. It is only in case the application is allowed or is converted into a plaint by virtue of the order of the court that it can be said that there is a plaint filed in the case in which case the plaint will be deemed to have been filed on the date of the presentation of the application. 44. The next question is whether the position will be different in the case of a pauper appeal. Will the fact that a separate memorandum of appeal is filed among with the application for permission to appeal as a pauper make any difference? According to the view taken by Sulaiman, C.J., in Mt. Shanzadi v. Alakh Nath (A.I.R. 1935 All. 620-2 F.B.), and Farran, C.J., in Bai Ful v. Desai Manorbhai (22 Bom. 849), in the case of a pauper appeal there are two documents filed in court, viz., the application for leave to appeal as a pauper and the memorandum of appeal itself, and the rejection of the application will not amount to rejection of the appeal. Sulaiman, C.J., however seeks to make a distinction. According to him, if copies of the judgment and decree sought to be appealed against are not filed along with the memorandum of appeal the filing of the memorandum of appeal will not amount to filing the appeal. In such a case the memorandum of appeal will be considered only as an appendix to the application. With great respect to the learned Judges we find ourselves unable to agree with the view that the filing of an application for permission to appeal as a pauper amounts to filing the appeal itself. On principle we do not find any distinction between the filing of an application for permission to sue as a pauper and application for permission to appeal as a pauper. The difference is only in the form. As observed by Candy, J. in 22 Bom. 849, the fact that in the case of a pauper appeal a separate memorandum of appeal is filed along with the application for permission to appeal as a pauper while in the case of a pauper suit the application itself contains the particulars of the plaint does not make any real difference between the two applications in their nature and import. The same principle should apply to both the cases. The same principle should apply to both the cases. In the case of a suit, if the application is allowed, the application itself will be numbered and registered as a plaint while in the case of an appeal the memorandum of appeal filed along with the application will be numbered and registered as an appeal. In the former case the plaint will be deemed to have been instituted on the date of the presentation of the application and in the latter case the appeal will be deemed to have been preferred on the date of the application. Similarly if the application is rejected there will be no plaint in the one case and no appeal in the other. If the application for permission to appeal as a pauper is rejected there is nothing further to be done by the court so far as the memorandum of appeal is concerned. There is nothing in the Code of Civil Procedure to indicate that there will still be an appeal to be disposed of by the court. There is no provision to the effect that when permission is refused the memorandum of appeal should be rejected. The court may, as in the case of an application for permission to sue as a pauper, instead of rejecting the application, direct the applicant to pay the requisite court fee within a time to be fixed by the court and if the direction is complied with the memorandum of appeal filed along with the application will be numbered and registered as an appeal. But that does not mean that there was already an appeal and that the court merely allows it to proceed in the ordinary manner. The memorandum of appeal becomes an appeal by reason of the order of the court although for purposes of limitation the appeal will be deemed to have been filed on the date of the presentation of the application. We do not also think that the production or the non-production of the copies of the judgment and decree sought to be appealed against will make any difference so far as this question is concerned. We do not also think that the production or the non-production of the copies of the judgment and decree sought to be appealed against will make any difference so far as this question is concerned. The question is whether the filing of a memorandum of appeal along with the application for permission to appeal as a pauper amounts to filing an appeal without court fee or whether it is filed only as an appendix to the application as enjoined by O. XLIV R.1 (Indian Code of Civil Procedure). For the reasons already stated we hold that the memorandum of appeal is filed only as an appendix to the application for permission to appeal as a pauper. 45. There is another way of looking at the question. If a memorandum of appeal presented in court is not received or admitted by the court it cannot be said that an appeal has been filed in the case even if the memorandum of appeal is accompanied by the copies of the judgment and decree sought to be appealed against. The memorandum of appeal may be rejected or returned under O. XLI R.3 if it is not drawn up in the manner prescribed by R. 1. Then again, if the requisite court fee is not paid the Court Fees Act prohibits the court from receiving or filing the memorandum of appeal. Similarly if the appeal is filed out of time the memorandum of appeal should not be received unless the delay is condoned by the court. If for any of these reasons the memorandum of appeal is not received or admitted by the court it cannot be said that an appeal has been filed. It is only if the memorandum of appeal is not rejected for any of these reasons that it will be registered as an appeal. O.XLI R.9 provides for registering of appeals. It says:- “9. (1) Where a memorandum of appeal is admitted, the appellate court or the proper officer of that court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose. (2) Such book shall be called the register of appeals”. O.XLI R.9 provides for registering of appeals. It says:- “9. (1) Where a memorandum of appeal is admitted, the appellate court or the proper officer of that court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose. (2) Such book shall be called the register of appeals”. A memorandum of appeal filed along with the application for permission to appeal as a pauper is not registered unless the application is allowed or the applicant is permitted by the court to pay the requisite court fee and the court fee is paid accordingly. If the mere presentation of a memorandum of appeal will amount to filing an appeal, even if the appeal is not admitted by the court, one can file an appeal any number of years after the date of the decree and contend that there has been an appeal from the decree and that the period of limitation for execution of the decree should be calculated from the date of the appellate decree or order as observed by Madhavan Nair, J. in Baya Reddy v. Gopala Rao (A.I.R. 1934 Mad. 303). The principle laid down by the Privy Council in Batuk Nath v. Munni Dei (36 All. 284) and Abdul Majid v. Jawahirlal (36 All. 350) applies to cases in which the appeal is not admitted and registered on account of the failure of the appellant to satisfy the conditions required for filing an appeal. On this point, we agree with the view taken by the Allahabad High Court in 6 All. 438 and in 1951 All. 79, by the Madras High Court in 1934 Mad. 303, by the Calcutta High Court in 1938 Cal. 553, and by this court in 1952 K.L.T. 423. We are unable to agree with the view taken in 16 Cal. 250 and 1931 Pat. 422. 46. The position will, however, be different if after the appeal is admitted and registered it is rejected for non-payment of court fee or on the ground that the appeal was filed out of time. Even if the appeal was wrongly admitted and registered it cannot be said that there has been no appeal. An appeal once admitted is an appeal for purposes of Art. 182(2) of the Indian Limitation Act, for whatever reason it may be subsequently dismissed. Even if the appeal was wrongly admitted and registered it cannot be said that there has been no appeal. An appeal once admitted is an appeal for purposes of Art. 182(2) of the Indian Limitation Act, for whatever reason it may be subsequently dismissed. As held by the Privy Council in Nagendra Nath v. Suresh (A.I.R. 1932 P.C. 165) even if the appeal is rejected on the ground that it was incompetent or for non-payment of court fee it should be taken that there has been an appeal for purposes of Art. 182(2). On this point we are in entire agreement, if we may say so with respect, with the view expressed by Fazl Ali, J. in A.I.R. 1938 Pat. 79 which was followed by this court in 1952 K.L.T. 423. As already stated, in this case the memorandum of appeal was not numbered or registered. It cannot, therefore, be said that there has been an appeal in this case. 47. The only other question that remains to be considered is whether the order of the court dated 31.3.1950 allowing the present respondent to pay the requisite court fee within a specified time amounts to admitting the appeal and whether the order dated 3.7.1950 disallowing the application for extension of time for the payment of court fee is a final order disposing of the appeal. We do not think that the order dated 31.3.1950 can be said to have the effect of admitting the appeal. The order was only to the effect that if the applicant would pay the requisite court fee by 30.6.1950 the memorandum of appeal would be registered and numbered, as an appeal. The order amounted only to a direction to the office to register the appeal in case the applicant would pay the court fee within the time fixed by the court. Since the court fee was not paid within that time there was no occasion for the office to register the appeal. The order shows that the court proceeded on the basis that there was no appeal before it, and that is the reason why no separate order was passed rejecting the appeal for non-payment of court fee. Similarly, the order dated 3.7.1950 dismissingthe application for extension of time for payment of the court fee can in no sense be said to be an order dismissing the appeal. There was no appeal to be dismissed. Similarly, the order dated 3.7.1950 dismissingthe application for extension of time for payment of the court fee can in no sense be said to be an order dismissing the appeal. There was no appeal to be dismissed. The decision of the Privy Council in Abdulla v. Ganesh Das (A.I.R. 1933 P.C. 68) relied on by learned counsel for the respondent cannot apply to this case. In that case the Privy Council held that there had been an appeal filed in court and that the order relied on by the respondent in that case was a judicial order that finally disposed of the appeal. A Full Bench of this Court has held in Velayudhan Thampi v. Ananthasubramonia Iyer (1953 K.L.T. 199) that an appeal from an order passed in a collateral proceeding which has no direct or immediate connection with the decree sought to be executed will not keep alive the period of limitation under Art. 182(2). 48. In the result, we hold that there has been no appeal filed in this case from the decree of the District Court. It is, therefore, Art. 166(1) of the Travancore Limitation Act (Art. 182(1) of the Indian Act) and not Art. 166(2) (Art. 182(2), Indian Act) that will apply to the case and period of limitation will have to be calculated from the date of the District Court decree. The execution petition which is filed more than three years from the date of that decree is clearly barred by limitation. The order of the court below is, therefore, set aside and the appeal is allowed with costs in both the courts. Allowed.