Thomman Thayamma v. Poulo Thomas — 1969 DIGILAW 266 (KER)

JUDGMENT P. Subramonian Poti, J. 1. Defendants 1 and 2 in a suit to set aside the decree in O. S. No. 33 of 1110 of the District Court, Parur and for a permanent injunction to restrain the said defendants from executing the said decree are the appellants in this appeal. The court below decided the suit pursuant to directions from this Court in A. S. No. 624 of 1958 and in view of this it is sufficient if I refer in this appeal to those facts which are necessary for the disposal of this appeal, One Thomman Kunji, deceased, had three sons - Thomman, Augustinju and Kochuvareed. Defendants 1 and 2 who are the appellants in this appeal are the children of Thomman and the third defendant is the widow of the said Thomman 4th defendant is the said Augustinju and defendants 5 to 8 are the children of Kochuvareed the 9th defendant being his widow. The properties in the suit described in A and B schedules belonged to Thomman Kunji and on his death, according to the plaintiff, Thomman became the Manager and on the death of Thomman, Augustinju became the manager. Augustinju was heavily involved in debts and his creditors therefore filed I. P. No. 9 of 1093 to adjudicate him as an insolvent, in the District Court of Parur. The Official Receiver in whom vested the assets of the insolvent filed a suit O. S. No. 49 of 1099 of the District Court of Parur for partition and recovery of one third share of Augustinju. On the basis of the decree obtained in that suit on 29-5-1103 the Official Receiver sold one third right of Augustinju in the plaint A and B schedules to one Mathu Poulo under Ex. P 2 dated 28-5-1107. The said Mathu Poulo is the father of the plaintiff in the present suit as also the 10th defendant and others. Some time after the said purchase by Mathu Poulo the first appellant in this appeal and another presented a petition in the District Court, Parur for permission to sue in forma pauperis. That suit was for partition and recovery of one third share in the A schedule properties which they claimed to have inherited from their father Thomman and for the recovery of the B schedule properties to which they claimed exclusive title. That suit was for partition and recovery of one third share in the A schedule properties which they claimed to have inherited from their father Thomman and for the recovery of the B schedule properties to which they claimed exclusive title. Several documents and decrees concerning those properties were sought to be cancelled at their instance in that suit. The petitioners were allowed to sue in forma pauperis and the suit was numbered as O. S. No. 33 of 1110. Mathu Poulo who obtained the rights of Augustinju from the Official Receiver was the 6th defendant in that suit. O. S. No. 33 of 1110 was decreed in favour of the plaintiffs therein on 4-12-1945 by Ex. P 4. It may be mentioned that during the pendency of the suit O. S. No. 33 of 1110 the second plaintiff therein died and the second defendant in this suit, by order on application, transposed himself as additional plaintiff in O. S. No. 33 of 1110 and therefore the decree in O. S. No. 33 of 1110 was obtained by the present defendants 1 and 2 as plaintiffs therein. Mathu Poulo who died after the date of the decree and while execution proceedings were being taken was represented in such execution by his children the plaintiff, the 10th defendant and others. The present plaintiff who was so impleaded as legal representatives of Mathu Poulo as additional defendant 27 attempted to set aside the decree by moving a petition under O.9 R.13, but he did not succeed. The present suit has been filed by the plaintiff thereafter. The suit was for setting aside the decree in O. S. No. 33 of 1110 on the ground of fraud in so far as it related to the rights of the plaintiff, 10th defendant and other legal representatives of Mathu Poulo and for a permanent injunction restraining defendants 1 and 2 from executing the decree in O. S. No. 33 of 1110 which they had obtained as plaintiffs. The plaintiff also set up certain special rights for himself and 10th defendant in several items of the suit properties. 2. Defendants 1 and 2 who contested the suit denied the allegations of fraud and also denied the special rights which were claimed by the plaintiff for himself and for the 10th defendant. 3. The trial court, by its judgment dated 31-7-1958, dismissed the suit. 2. Defendants 1 and 2 who contested the suit denied the allegations of fraud and also denied the special rights which were claimed by the plaintiff for himself and for the 10th defendant. 3. The trial court, by its judgment dated 31-7-1958, dismissed the suit. The plea of fraud was found against on the ground that the plea did not relate to fraud extraneous to the records of the case, and therefore it was not open to the plaintiff to urge that as a ground to set aside the decree. It was also found that the suit seeking to set aside the decree on the ground of fraud would be barred by limitation. The rights claimed by the plaintiffs in their individual capacity were not adjudicated. An appeal was taken from that decision to this Court as A. S. No. 624 of 1958. This Court agreed with the court below on the question of fraud. But since the plaintiff had set up special rights to certain items of properties, the suit was remanded for adjudication on the question of special rights claimed by the plaintiff to certain items in A schedule and also item 7 in B schedule. After such remand the plaintiff produced certain documents and these were also marked. There was an application by the 10th defendant to be transposed to the plaintiff's array. That was rejected by the court below on the ground that the order of remand by this Court limited the trial to the claim by the plaintiff in regard to the special rights set up in respect of certain items. If so, it was not open to the court below to consider any right of the 10th defendant in the suit properties. Hence the decision in the suit was to be limited to the rights claimed by the plaintiff in regard to the various items, the consideration of which was directed by the judgment of this Court. 4. Though in considering the special rights claimed by the plaintiff in respect of several of the items the court actually came to the conclusion that in regard to the many special rights were that of 10th defendant, that was not a matter which required adjudication pursuant to the order of remand by this Court. 4. Though in considering the special rights claimed by the plaintiff in respect of several of the items the court actually came to the conclusion that in regard to the many special rights were that of 10th defendant, that was not a matter which required adjudication pursuant to the order of remand by this Court. Whatever was said in regard to the special rights of the 10th defendant was not necessary for the disposal of the suit as no decree could be granted to the 10th defendant in regard to such special rights. Therefore, in spite of what was held in the judgment as to the rights of the 10th defendant the decree was lightly limited to the claim of the plaintiff. Of the items over which such special rights were claimed by the plaintiff he was found entitled to a decree in regard to 24.600 cents in item No. 1 and a right along with the 10th defendant to 7 acres and 83 cents in item 30, and the eastern 1 acre and 26 cents in item 49 in A schedule. It was held that in regard to rights to these items plaintiff's interests would be unaffected by the decree in O. S. No. 33 of 1110. Defendants 1 and 2 who are the appellants here were restrained by a permanent injunction from executing the decree obtained by them in O. S. No. 33 of 1110 against those items or recovering them in execution of O. S. No. 33 of 1110. The appellants before me are the defendants who challenge the grant of the decree to the plaintiff in regard to these three items. There is a cross appeal by the first respondent who is the plaintiff in the suit. In the cross appeal the plaintiff has claimed right in regard to A schedule item No. 16 and B schedule item No. 7 besides questioning the decree for costs awarded by the court below. There is a cross appeal at the instance of the second respondent also. The 10th defendant is the second respondent in this appeal. He died pending this appeal and his legal representatives were not impleaded in time, with the result the appeal has abated as against 10th defendant. There is a cross appeal at the instance of the second respondent also. The 10th defendant is the second respondent in this appeal. He died pending this appeal and his legal representatives were not impleaded in time, with the result the appeal has abated as against 10th defendant. I am therefore not considering the contentions in the cross appeal filed by the second respondent, and I have also to bear in mind that in disposing of this appeal no relief as against the 10th defendant second respondent should be granted to the appellants. During the pendency of this appeal the second appellant died and his legal representatives have come on record as additional appellants 3 to 10. 5. The challenge against the decrees of the court below by defendants 1 and 2 in this appeal is in regard to all the three items for which a decree has been granted to the plaintiff by the court below. I will consider each one of these in seriatum. 6. The plaintiff is found entitled to 24.600 cents in item No. 1. This is by virtue of a revenue sale evidenced by Ex. P 28 sale certificate and Ex. P 29 delivery report. This 24.600 cents in item No.1 was sold for arrears of land revenue on 27-10-1117 and the plaintiff purchased it in the said sale. It was sold for revenue due under Thandaper Nos. 103 and 1193 standing in the name of Augustinju. The revenue sale was held during the pendency of the suit O. S. No. 33 of 1110. Consequently, according to defendants 1 and 2, such sale is vitiated by lispendens and if so plaintiff would not obtain any title by reason of his purchase. This contention was negatived by the court below on the strength of the decision reported in Keshavan Karunakaran Pillai v Raman Keshavan Pillai ( 1952 KLT 30 ). The learned Judge took the view based on the said decision, that the doctrine of lispendens would not be applicable to sales for recovery of arrears of land revenue. This contention was negatived by the court below on the strength of the decision reported in Keshavan Karunakaran Pillai v Raman Keshavan Pillai ( 1952 KLT 30 ). The learned Judge took the view based on the said decision, that the doctrine of lispendens would not be applicable to sales for recovery of arrears of land revenue. The learned counsel contends that the decision on which reliance has been placed by the court below is not applicable to the facts of this case, as according to him, it is only if a sale is held in respect of a property which is charged for the arrears of revenue that the doctrine of lispendens would not apply. It is this question which I have to consider in regard to this item of suit property. 7. If the land sold is for recovery of arrears of revenue due on such land for which it is charged, it is not disputed that such sale would extinguish all encumbrances in the property and the sale will be free of encumbrances. But what would be the position if the sale is of the defaulter's property which is not charged for the revenue sought to be realised by sale of such property? Proceedings may be taken for recovery of arrears due by attachment of the property of the defaulter other than that on which the revenue is due and under the provisions of the Revenue Recovery Act such land may not be a charge for the amount so due. If it is so proceeded against and sold, will it extinguish the encumbrances on the property, or in other words, will it be free of encumbrances? Even though the doctrine of lispendens may not apply to a case of sale of property which is charged for the revenue for the realisation of which the sale is held, will the same be the case of a sale of property which is not charged for the amount sought to be recovered? This is the question which calls decision in this case. In 1952 KLT 30 there was no occasion to consider this aspect of the case. The case before the court there was one of sale in enforcement of the paramount charge on the land for the land revenue. This is the question which calls decision in this case. In 1952 KLT 30 there was no occasion to consider this aspect of the case. The case before the court there was one of sale in enforcement of the paramount charge on the land for the land revenue. In such a case the Travancore - Cochin High Court, after an exhaustive review of the case law on the question, held following a decision of Govinda Pillai J. in Iravi Krishnan Kartha v Kumaraswami Nambudiripad ( 1950 KLT 322 ) that: "As the land revenue is a paramount charge on the land and its products and as the law provides that a sale in enforcement of that paramount claim shall extinguish all subsisting charges the doctrine of lis pendens cannot be extended to sales held to realise land revenue dues." Though this is the position it is not every case of involuntary sale that could be said to extinguish all charges on a property. If a revenue sale is held for arrears not charged on a property then it is well established that the sale will not operate to extinguish the prior charges. S.3 of the Travancore Revenue Recovery Act provides that the land and buildings upon it and its products shall be regarded as security for the public revenue on such land, (it is the Travancore Revenue Recovery Act which applies in the present case as the sale was held during the time when that Act was in force. If under the same thandaper or patta there are properties falling in more than one survey number, will charge for arrears of public revenue arising under S.3 arise in respect of properties under the same thandaper or patta ? this is a question which has been raised before me in this second appeal. According to counsel for the appellants Ex. P 28 sale certificate shows that it is for arrears of tax due on two thandapers that the property was sold and therefore it cannot be said that it was for arrears of tax due only on the property which was sold that the sale was held. If so, according to the counsel the charge under S.3 might not arise and in that event it would not be a sale which is not vitiated by lispendens. Learned counsel for the respondents Mr. If so, according to the counsel the charge under S.3 might not arise and in that event it would not be a sale which is not vitiated by lispendens. Learned counsel for the respondents Mr. T.N. Subramonia Iyer brings to my notice the decision of Govinda Pillai J. interpreting the relevant sections of the Travancore Revenue Recovery Act in Krishnan Karthavu v Kumaraswamy and another ( AIR 1952 TC 61 ) wherein the learned Judge held: "I am therefore of the view that pending suits which decree based on mortgages or other charges created by a land holder would not in any way affect a revenue sale held under Act 1 of 1068 (Travanocre) for arrears of tax due from the land sold or from that land and other lands included in the same patta or thandaper, and that the auction purchaser gets the land purchased free of all encumbrances." There is no discussion of this question in that judgment. I might have been called upon to decide this question one way or the other but for the fact that on the facts of this case such a decision is not called for. Even assuming that in respect of all the properties comprised in a thandaper there is charge arising by reason of S.3 of the Travancore Revenue Recovery Act for arrears of public revenue due in respect of any one of the items of land and therefore a sale conducted for recovery of such arrears, though it may be of only one item would be one not vitiated by lispendens that will have no application here because it is seen from Ex. P 28 that it was for arrears of tax due under two thandapers that the suit item 24.600 cents was sold in revenue auction. It is certainly not the case of the respondents that even in respect of another thandaper also there will be charge. It can be assumed safely in this case that it is not for arrears of revenue charged solely upon the property which was sold that the sale was held in view of the mention in Ex. P 28 that arrears were due in respect of two thandapers. According to the counsel for the appellants this is sufficient and the principle of the decision in 1952 KLT 30 may not apply and if so the sale will be vitiated by lispendens. P 28 that arrears were due in respect of two thandapers. According to the counsel for the appellants this is sufficient and the principle of the decision in 1952 KLT 30 may not apply and if so the sale will be vitiated by lispendens. I see considerable force in this contention of counsel. 8. Though I agree with the learned counsel for the appellants that the view canvassed by him that a revenue sale held for arrears of tax due on a particular property and charged on it stands on a different footing from a sale of a property held for arrears of tax not charged on it that will not affect the position here. If a sale of a property in revenue auction is for recovery of arrears of revenue charged on that property it may extinguish encumbrances over that property. If there is already a suit to enforce a mortgage of a charge pending on the date of such sale that mortgage or charge also would be extinguished by the revenue auction. If, on the other hand, the revenue sale is not in enforcement of a charge on the very property which is sold, the sale will not be free of encumbrances, with the result that a subsisting encumbrance in the property would continue. If any encumbrancer had filed a suit on the date of the revenue sale the result of the suit will not in any way be affected by the revenue sue held. It is to that extent and that extent only that the doctrine of lispendens would operate. It is not as if by the mere fact that a suit concerning any property is pending in court that the revenue authorities are precluded from selling that property in revenue auction or if so sold the revenue sale would not confer any rights on the transferee. The sale under the Revenue Recovery Act is an involuntary sale and it will not extinguish the rights of encumbrancers in the property, if on the date of sale, there are such encumbrances which are not subject to the charge sought to be enforced by the revenue sale. The sale under the Revenue Recovery Act is an involuntary sale and it will not extinguish the rights of encumbrancers in the property, if on the date of sale, there are such encumbrances which are not subject to the charge sought to be enforced by the revenue sale. To say that if any suit, such as, a suit for declaration of title, one for recovery of possession, a suit relating to boundaries, or a suit for partition is pending in any court the sale of property which is involved in such suit in revenue auction will not confer any rights 0s against the parties to the suit is certainly not a proposition for which I can find any authority. There is a discussion of this question to be found at page 38 of the report in Keshavan Karunakaran Pillai v Raman Keshavan Pillai ( 1952 KLT 30 ). Justice Koshi, as he then was, referred to this aspect of the matter. I will quote the relevant passage in that judgment here. "There is however one more aspect to be referred to here. So far as 1 was dealing with cases where revenue sales took place during the pendency of suits to enforce mortgages or charges over the properties sold. In this case it was a suit for a declaration as to title that was pending when the revenue authorities sold the plaint property. If it were a private sale that took place pending that suit it is undoubted law that the purchaser would have taken it only subject to the result of the litigation. The Privy Council decision in Moti Lal v Karrabuldin ILR 25 Calcutta 179 referred to earlier shows that the same result would have followed even if the sale was held by a court in enforcement of a mortgage decree for sale. For obvious reasons the provision in S.39 cannot be called to aid in this case where the revenue sale took place pending a suit regarding the title to the property and not sending a suit to enforce a mortgage or charge. We have not been referred to nor have I been able to come across any decision myself which holds that the doctrine of lis pendens can or cannot be extended to a revenue sale held under similar circumstances. We have not been referred to nor have I been able to come across any decision myself which holds that the doctrine of lis pendens can or cannot be extended to a revenue sale held under similar circumstances. The object of the law relating to lispendens which affects a purchaser as stated in the leading case in Bellamy v. Sabine 1 DRG & J. 566 44 Eng. Reports 842 is that "the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute so as to prejudice 'the opposite party'. To use the language of Story's Equity Jurisprudence, 'he who purchases during the pendency of a suit is held bound by the decree that may be made against the person from whom he derives title". In these well recognised statement of the principle underlying the rule of lispendens as also in the rule embodied in S.52 of the Transfer of Property Act the prohibition is only against litigant parties dealing with properties in dispute and not against a paramount claim like that of the State or a Local Body being enforced. In the case in AIR 1929 Rangoon 175 the learned Judges said: "We do not consider that the doctrine applies to this case at all. It would indeed be a dangerous extension of the doctrine to hold that neither Government nor a Local Body could recover its taxes or rates from a defaulter so long as a law suit was pending between the defaulter and some of his other creditors". In my view the reason equally holds good for not extending the application of the doctrine of lis pendens so as to affect a revenue sale held during the pendency of a suit regarding title or ownership of the property sold. It would create an impossible position if the Court were to hold that the State cannot sell a property for arrears of land revenue due thereon when a dispute about its ownership is pending before a Civil Court. The State cannot be expected to wait for the collection of its dues until the dispute is settled once for all. This is exactly what the case in 4 Travancore Law Reports 81 (F.B.) said. The State cannot be expected to wait for the collection of its dues until the dispute is settled once for all. This is exactly what the case in 4 Travancore Law Reports 81 (F.B.) said. To extend the application of the doctrine of lis pendens to a sale held under circumstances similar to the present would be to defeat the land revenue laws of the State and to run counter to their intendment. I accordingly hold that the revenue sale in question cannot be held to be bad for the reason stated by the lower court." In the present case the revenue sale was held during the pendency of a suit for partition. The sale was held for recovery of arrears of tax due in respect of properties to which the present defendants 1 and 2 were also entitled. The sale itself is not attacked for any reason. If so, the mere fact that the suit for partition was pending will not tender the revenue sales held during its pendency vitiated by lispendens, so as to deprive the auction purchaser of the rights to the property. Hence I do not think there is any reason to set aside the decree in regard to 20-600 cents in item 1. 9. The next item which is under challenge in this appeal is item 30. This is 7 acres and 83 cents comprised in Sy. No. 21/1. The title to this is claimed on the basis of a revenue sale for arrears of tax held on 30-10-1106. The details regarding this item will be relevant. Ex. P 39 sale certificate evidences the sale held on 30-10-1106. The purchaser was one Padmanabha Panicker. He sold it to Mathu Poulo under Ex. P 27 dated 27-6-1109. It may be noticed that this sale was subsequent to the date of filing of the petition to sue in forma pauperis which was subsequently registered as O. S. No. 33 of 1110. The petition was presented on 29-1-1109 and the suit was registered only in 1110. Mathu Poulo who obtained Ex. P 27 sale of the right to this item from Padmanabha Panicker the auction purchaser subsequent to the institution of the pauper petition but before it was numbered as & suit did not set up his special right based upon Ex. P 27 purchase in the written statement in O. S. No. 33 of 1110. Mathu Poulo who obtained Ex. P 27 sale of the right to this item from Padmanabha Panicker the auction purchaser subsequent to the institution of the pauper petition but before it was numbered as & suit did not set up his special right based upon Ex. P 27 purchase in the written statement in O. S. No. 33 of 1110. Therefore there was no adjudication of his rights under Ex. P 27 purchase which itself was based on the revenue sale. It is now contended by the plaintiff as a legal representative of the deceased Mathu Poulo that he along with the 10th defendant was entitled to the rights obtained by his father under Ex. P27 and though the claim thereunder was not set up in the earlier suit O. S. No. 33 of 1110 it would not be barred by res judicata for the reason that it was a right obtained by him subsequent to the date of institution of the suit. If a person acquires a right during the pendency of the suit, though he may be a party to the suit, he is not obliged to set up his rights based upon such acquisition during the pendency of the suit. This is a principle well established and so far as this Court is concerned it is covered by the authority of the decision in Abdulla v Ayisumma ( 1958 KLT 808 ). This principle is not disputed. It must apply to this case. But the court below was of the view that the institution of the suit would be the date on which a petition to sue in forma pauperis under O.33 R.1 of the Civil Procedure Code is filed and not on the date when the suit is registered and numbered. In that view the court held that Mathu Poulo who was the 6th defendant in the suit having acquired the rights to this item during the pendency of the suit namely only on 27-6-1109, was not obliged to raise contentions in the such in answer to the plaint claim based upon such right subsequently acquired. In that view the case of the plaintiff as legal representative of Mathu Paulo in the present suit urging special rights to this item based on Ex. P 27 purchase by his father was held to be not barred by constructive res judicata as right based on Ex. In that view the case of the plaintiff as legal representative of Mathu Paulo in the present suit urging special rights to this item based on Ex. P 27 purchase by his father was held to be not barred by constructive res judicata as right based on Ex. P 27 was not one which might and ought to have been pleaded by his father in O. S. No. 33 of 1110. The decision of the court below would be correct if the view taken by it that when a petition to sue in forma pauperis is numbered as a suit the suit should be considered as pending from the date of presentation of the pauper petition, is correct. The learned counsel for the appellant canvassed the correctness of this propositions. According to him the provisions of O.33 R.1 of the Code of Civil Procedure make it abundantly clear that what a petitioner seeks by filing a petition under O.33 R.1 is only permission to sue and that until and unless such permission is given by court it cannot be considered that there is a suit on the file of the court and it so the suit can ' be deemed to have been filed only when it is registered and numbered which in this case is in the year 1110. The purchase by Mathu Paulo having been in the year 1109 which, in that view, was before the date of suit, if he had not set up his claim on the basis of Ex. P 27 in that suit his claim would be barred by constructive res judicata. In view of this contention I am called upon to decide the question as to when a suit is deemed to have been filed in the case of a petition to sue in forma pauperis under O.33 R.1 of the Code of Civil Procedure, subsequently registered and numbered as a regular suit, I will now proceed to consider this question. 10. O.33 R.1 reads as follows: "Subject to the following provisions, any suit may be instituted by a pauper." R.2 requires that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits. It has also to be signed and verified in the manner prescribed for the signing and verification of pleadings. O.33 R.1 reads as follows: "Subject to the following provisions, any suit may be instituted by a pauper." R.2 requires that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits. It has also to be signed and verified in the manner prescribed for the signing and verification of pleadings. R.5 provides for the rejection of an application for permission to sue as a pauper, and in particular R.5(d) provides that it could so rejected where his allegations do not show a cause of action. The cause of action for the suit has to be shown even on the date the petition to sue in forma pauperis is filed. If the petition satisfies all the requirements prescribed and the applicant is shown to be a pauper the application shall be numbered and registered. R.7(3) provides that after hearing arguments it shall either allow or refuse to allow the applicant to sue as a pauper or direct that the application be filed as a plaint on the applicant paying the requisite court fee within 30 days or such reasonable time as the Court may fix. R.8 prescribes the procedure to be followed where the application is granted. In that event 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 event except in regard to payment of court fee. I have also to notice the provision in O.4 R.1 of the Civil Procedure Code. That Rule provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. From this rule possibly it may appear that the institution of the suit is always only by the presentation of a plaint. But this has to be read along with S.26 of the Civil Procedure Code which is as follows: "Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed." Though O.4 R.1 refers only to the presentation of a plaint for the institution of a suit it may also be by such other manner as may be prescribed and the question is whether the provisions in O.33 prescribe another manner in which there a suit may be instituted. The petition to sue in forma pauperis, though is termed as a petition, has to contain all material averments which have to be contained in a plaint and has also to be signed and verified as in the case of a plaint. For the purpose of limitation a pauper a suit is taken as instituted as on the date of the petition if leave to sue as pauperis granted. This may not help in the determination of the question whether the suit must be deemed to have been instituted on the date of filing of the petition because, it is by a special statutory provision made in S.3 of the Limitation Act 36 of 1963 that, for the purpose of limitation, the suit is taken to be instituted when the application for leave to sue as a pauperis filed. Therefore what has to be considered is really the nature of the petition filed under O.33 of the Civil Procedure Code seeking permission to sue in forma pauperis. Bearing in mind that S.26 of the Civil Procedure Code permits the institution of suit otherwise than in the manner contemplated in O.4 R.1, Civil Procedure Code, the rules in O.33 will have to be considered. It would appear that what is instituted as a petition to sue in forma pauperis is a plaint along with a petition to excuse payment of court fee, such excuse being sought on the ground that the person who seeks to sue is unable to pay court fee for the suit. Therefore it is a composite document a plaint as well as a petition for permission to sue without payment of court fee. It is kept on the file of the court without being registered and numbered until after an adjudication by the court as to the question whether the petitioner is a pauper. It does not mean that it becomes a plaint in a suit only when it is actually, numbered and registered on the grant of the pauper petition under O.33 R.7(3) or that it would become a plaint only on payment of court fee when such payment is directed, finding that the petitioner is not a pauper. It does not mean that it becomes a plaint in a suit only when it is actually, numbered and registered on the grant of the pauper petition under O.33 R.7(3) or that it would become a plaint only on payment of court fee when such payment is directed, finding that the petitioner is not a pauper. From the very date of institution of the petition it has to be treated as the plaint in a suit and the suit is to be deemed to have been on the file of the court for the very many purposes under the C.P.C. I may refer to some such other purposes. Under O.39 R.1 and 2, the court is empowered to grant an injunction "in any suit." Therefore the pendency of a suit is the pre requisite for the exercise of jurisdiction under O.39 R.1 and 2. If a petition to sue in forma pauperis is filed these provision could be invoked, if the suit is deemed to be instituted by the filing of the petition. So is the case with an order under O.39, R.7 for detention, preservation and inspection of the subject matter of the suit. That is also available only on the application of "any party to a suit". So is the provision under O.38 R.1 for calling upon the defendant for furnishing security for appearance and also for attachment before judgment under O.36, R.8. The question may arise with reference to the payment of court fee. If a suit is deemed to be instituted on the date the application is filed to sue in forma pauperis the law regarding court fee would be the law on that day; if on the other hand the relevant date is the day on which the suit is registered and numbered the court fee payable would be that on the basis of the law in force on the date on registering and numbering the case as a suit. I am referring to this because the decision on the question raised in this appeal will necessarily have impact on the decision of the questions which I have mentioned just now. The courts have taken more or less a uniform view on these questions, though there have been some decisions which are against the current of authority. I am referring to this because the decision on the question raised in this appeal will necessarily have impact on the decision of the questions which I have mentioned just now. The courts have taken more or less a uniform view on these questions, though there have been some decisions which are against the current of authority. Reliance is placed on the decision of the Privy Council reported in Stuart Skinner v. William Orde (ILR II All. 241 PC). That was a case where a person, who, on the date of a petition to sue in forma pauperis, was a pauper, subsequently obtained funds during the pendency of the enquiry and being able to pay court fee paid it and thereupon the suit was numbered and registered as a suit. The question arose whether his suit should be deemed to have been instituted from the date when he filed his pauper petition. This question arose in connexion with the limitation for the suit. If the petition had been enquired into and finally decided in his favour and it was held that he was a pauper, the provisions of the Limitation Act itself would have operated to treat the day on which such petition was filed as relevant for reckoning limitation for the suit. But that provision in the Limitation Act did not apply to a case where the petition was filed in forma pauperis by a person who would have succeeded in such a petition as he was a pauper on that date but who subsequently was able to pay court fee and paid such court fee. Whether in applying the law of limitation to him it should be taken that the suit was instituted only when the suit was registered and numbered was the question which arose before the Privy Council. Dealing with this question the Privy Council held: "Now a petition to sue in forma pauperis contains all that a plaint is required to do. Whether in applying the law of limitation to him it should be taken that the suit was instituted only when the suit was registered and numbered was the question which arose before the Privy Council. Dealing with this question the Privy Council held: "Now a petition to sue in forma pauperis contains all that a plaint is required to do. By S.300 "the petition shall contain the particulars required by S.26 of this Act in regard to plaints, and shall have annexed to it as a schedule of any movable or immovable property belonging to the petitioner, with the estimated value thereof, and shall be subscribed and verified in the manner hereinbefore prescribed for the subscription and verification of "plaints." Therefore it contains in itself all the particulars the statute requires in a plaint, and, plus these, a prayer that the plaintiff may be allowed to sue in forma pauperis. The analogy of a case of wrong stamp being affixed on the plaint originally and the proper stamp affixed afterwards was considered by the Privy Council. In such a case it is not as if a plaint comes into existence only when proper stamp is affixed but remains as it is even originally on the file of the court and becomes free from the objection when the correct stamp is placed upon it. Their Lordships of the Privy Council noticed the mischief that would be caused by the construction that a suit would be deemed to be instituted only when it is registered and numbered and therefore held that when a petition to sue as a pauperis filed the suit must be deemed to be instituted when the application was so filed. This decision has been noticed invariably in all the decisions of the High Courts in which this question arose in one form or other. The decisions of the Madras High Court reported in Nallavadivu Ammal v Subramania Pillai (AIR 1918 Mad. 1039), Kaman Mada v. Malli (AIR 1926 Mad. 159), Chidambaram Nataraja Mudaliar (AIR 1939 Mad.80), Sundarathammal v. Paramaswami Asari ( AIR 1933 Mad. 883 ) and Periyasami Padayachi v Minor Ulaganathan (AIR (36) 1949 Mad. 162) referred to the case of Skinner v. Orde (II All. 241 P.C.) and applied this principle to cases where the question whether a suit has been instituted by the presentation of a petition under O.33 R.1 arose. 883 ) and Periyasami Padayachi v Minor Ulaganathan (AIR (36) 1949 Mad. 162) referred to the case of Skinner v. Orde (II All. 241 P.C.) and applied this principle to cases where the question whether a suit has been instituted by the presentation of a petition under O.33 R.1 arose. The Bombay High Court also followed this decision and I need refer only to the decision reported in Totaram Ichbaram Wani v. Dattu Mangu Wani (AIR 1943 Bombay 143). The Patna High Court in Gupteshwar Missir v Chathuranand Missir (AIR 1950 Patna 309) and the Mysore High Court in Thimmayya v Sadasivappa (AIR 1952 Mysore 76) have seem to have taken a view against the current of authority. The decision of the Patna High Court was not one dissenting from the various decisions of the other High Courts which it had occasion to notice. The Patna High Court referred to Skinner v Orde and seemed to read the decision as having been rendered on the terms of the Limitation Act. That certainly is not correct. No doubt their Lordships of the Privy Council referred to Act 9 of 1871. But that was a case where the Limitation Act did not apply and Their Lordships cannot be understood to have said that they are deciding the case with reference to the terms of the Limitation Act. On the other hand the question of limitation may arise even in a case not covered by Act 9 of 1971 and what should be the construction of the relevant provisions of the C.P.C. in such a case was the question which arose before the Privy Council. The case before the Patna High Court was one where the contention raised during the pendency of an application under O.33 R.1 concerned the pecuniary jurisdiction of that court. Apart from the correctness of that decision it can be seen that the question now before me was not decided in that case either way. No doubt the Mysore High Court in Thimmayya v Sadasivappa (1952 Mysore 76) appears to have taken a different view. There is no discussion of the question in that decision. The decision of the Privy Council has not apparently been noticed by the Mysore High Court nor has the decisions which have a bearing on the point apparently brought to its notice. There is no discussion of the question in that decision. The decision of the Privy Council has not apparently been noticed by the Mysore High Court nor has the decisions which have a bearing on the point apparently brought to its notice. The question that arose in the case was whether an order of temporary injunction can be passed under O.39, R.1 when the pauper petition had not been numbered and registered as a suit. The court held: "Since permission to sue as pauper has not been granted to the applicant to sue as a pauper, it cannot be said that there is a suit pending between the parties." The decisions in Gupteshwar Missir v. Chaturanand Missir (1950 Patna 309) as also in Thimmayya v Sadasivappa (1952 Mysore 76) have been noticed by the Nagpur High Court in Channulal v Shama Ramchandran (AIR 1955 Mag. 259) and these have been dissented from. The Nagpur High Court had expressed the same view earlier in Chudaman Shamrao v Babaji Daduappa Wani (AIR (31) 1944 Nag. 357). The Hyderabad High Court also expressed its view in the same way in Laxmi v. Ramiah (AIR 1954 Hyd. 97) where the question that was considered was, whether, for the purpose of moving an application under O.38 R.5, it should be taken that the suit is instituted on the date when the petition to sue in forma pauperis is filed. I may also refer to the decision of the Calcutta High Court reported in Jagadiswari Debi v. Tinkari Bibi (AIR 1936 Cal. 28), In a later decision of the Calcutta High Court a single Judge of the Court did not follow the decision in Jagadiswari Debi v Tinkari Bibi (1936 Cal. 28) and also that in Kali Dasi Dasi v. Santosh Kumar Pal (AIR 1938 Cal. 730). This was in Biswa Nath Das v. Khejerali Molla (AIR 1939 Cal. 394). 11. In a decision reported in Matuki Ristry v Kamakhaya Prasad (AIR 1958 Patana 264 F.B.) the decision in Channulal v Shama Ramachandran (1955 Nag. 259) was relied on and the decision of the Mysore High Court in Thimmayya v Sadasivappa (1952 Mysore 76) as also the earlier decision of the Calcutta High Court in Purna Chandra Chabri v. Tara Prasad Maiti (AIR 1917 Cal. 852) were dissented from. 259) was relied on and the decision of the Mysore High Court in Thimmayya v Sadasivappa (1952 Mysore 76) as also the earlier decision of the Calcutta High Court in Purna Chandra Chabri v. Tara Prasad Maiti (AIR 1917 Cal. 852) were dissented from. The question that arose in the Full Bench case of the Patna High Court was one whether the filing of an application in forma pauperis was equivalent to the filing of a plaint or not, commencing the suit for the purpose of an application for an injunction under O.39 of the C.P.C. An injunction under the provisions of O.39 has to be made in a suit and therefore before such order can be passed the suit must have commenced. The provision of O.4 R.1 of the C.P.C. was noticed and the court took the view that it is not the only mode of the institution of the suit. Reference was made to S.26 of the C.P.C. which provided that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. O.33 which is headed as "Suits by Paupers" prescribes the mode of institution of a suit by a pauper and considering the various rules in that order the Full Bench held that: "O.33 prescribes the mode for institution of a suit by a pauper as contemplated by the words "in such other manner as may be prescribed" used in S.26 of the Code of Civil Procedure" It was therefore held that the suit is instituted and commenced from the moment the application for permission to sue in forma pauperis as required by O.39 of the Civil Procedure Code is presented. In Bhanu v Balmia and Co. (AIR 1959 MP 189) Hidayathulla C. J.) (as he then was) considered the question referred to the Division Bench of that Court. "Whether the court, having initially granted time while dismissing the pauper application, can further extend time under S.149 of the C.P.C. after the expiry of the time initially granted." In considering this question the learned Chief Justice said: "It has been held in this Court that in proceedings for permission to sue in forma pauperis there are two matters before the court, (a) the plaint, and (b) the application to sue in forma pauperis. Even if the application (b) be dismissed there still remains the plaint (a), and if time is given to pay court fee and it is paid, the plaint is good from the time when the plaint (a) was filed. This is not only the cursus curiae but also the settled opinion of this court." There is an exhaustive discussion of this question in the decision of the Madhya Pradesh High Court in Ramdharlal v Nagendra Prasad ( AIR 1967 MP 1 .) Following the decision of the Privy Council as also the decisions of the various High Courts and the Supreme Court, the Full Bench of that Court held that the application to sue as a pauper has a duel character, as an application to sue as pauper and as unstamped plaint and that the application as an unstamped plaint remains pending even after the refusal to sue as a pauper. The Rajasthan High Court has also taken the same view in Narayanan Dutt v Smt. Mohani Devi ( AIR 1964 Raj. 279 ). For the purpose of O.39 it was held that the suit is instituted or commences from the moment the application for permission to sue in forma pauperis as required by O.33 is presented. The Supreme Court also had occasion to refer to this question. That was in the decision reported in Vijai Pratap Singh v Dukh Haran Nath Singh ( AIR 1962 SC 941 ). The question that was considered there was about the maintainability of an application by a respondent in a petition to sue in forma pauperis to transpose himself to the array of the petitioner. In meeting the contention that the relief prayed for by a petitioner in a petition to sue in forma pauperis was personal to himself and in rejecting the contention the Supreme Court held: "An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauperis not established the application may fail. But there is nothing personal in such an application. If the claim made by the applicant that he is a pauperis not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by O.33 of the Code of Civil Procedure is presented, and O.1, R.10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid." 12. In view of the authorities to which I have referred, it may be taken as now well settled that a petition filed for permission to sue in forma pauperis under O.33 C.P.C. is really a composite document. It is a plaint as well as a petition seeking permission to sue without payment of court fee and the suit must be deemed to have been instituted on the date the petition is filed and it is one of the modes of institution as contemplated under S.26 C.P.C. In view of this it has to be taken that in the present case Ex. P.27 was taken by Mathu Poulo after the institution of the suit and if so the said Mathu Poulo was not obliged to set up the rights obtained by him during the pendency of the suit. It necessarily follows that there is no res judicata for raising a claim based under Ex. P.27 in the present suit. I therefore hold that the decree granted to the plaintiff in regard to the item obtained by Mathu Poulo under Ex. P.27 is not liable to be attacked in the suit. Hence the appellants ought to fail even with regard to this item obtained by Mathu Poulo- 13. The next item with which I am concerned in this appeal is item 49. The matter has been discussed in para 17 of the Judgment of the court below. Special right claimed in respect of that item is pursuant to Ex.P.21 decree. That is a decree to which defendants 1 and 2 are parties. Ex. P.21 is not one of the decrees challenged in O. S. 33 of 1110 and not one which has been set aside. It has not been shown how the judgment of the court below in regard to this item is wrong. That is a decree to which defendants 1 and 2 are parties. Ex. P.21 is not one of the decrees challenged in O. S. 33 of 1110 and not one which has been set aside. It has not been shown how the judgment of the court below in regard to this item is wrong. Hence I hold that the appellants have to fail in regard to all the contentions which have been raised in this appeal. 14. There is a cross appeal by the first respondent. That cross appeal concerns 2 items of properties, A schedule item No. 16 and B schedule item No. 7. With regard to A schedule item the plaintiff was denied a decree because it was found that under Ex. P.15 sale certificate and under Ex. P.38 delivery report it was the 10th defendant who obtained the special right over this item. Even now it has not been shown to me how any title can vest in the plaintiff pursuant to a court sale in favour of the 10th defendant. With regard to B schedule item also it has been found that it is the 10th defendant who has obtained right under Ex. P.14, P.15, and P.38, these being the sale report, also sale certificate and delivery report respectively in O. S. No. 79 of 1103. These are all in favour of the 10th defendant. The plaintiff has no interest and it is not shown that the plaintiff has any interest in these items. The next challenge in the cross appeal by the respondent is to the award to him of only 3/4 of the costs. Defendants 1 and 2 had substantially succeeded in their contention and the decree for costs was based upon the circumstances of the case. I do not think that there is any necessity to interfere with the direction in regard to costs. Hence the cross appeal has also to be dismissed. As I have mentioned earlier, the second respondent died during the pendency of the appeal and the appeal has abated as against him. Therefore the cross appeal by the second defendant is also to be dismissed. 15. In the result, I dismiss the appeal and the cross appeals filed by the first and second respondents. The appeal is dismissed with costs and the cross appeal also with costs. Therefore the cross appeal by the second defendant is also to be dismissed. 15. In the result, I dismiss the appeal and the cross appeals filed by the first and second respondents. The appeal is dismissed with costs and the cross appeal also with costs. There will be no costs on the cross appeal by the second respondent.