( 1 ) THE short question that arises in this revision petition is, whether P. Misc. No. 10 of 1965 was not maintainable having regard to the provisions of Or. 33, R. 15 CPC. It arises in this way. ( 2 ) THE petitioners have filed P. Misc. No. 10/65 seeking permission to file the suit as paupers. The learned trial Judge on the material on record, came to the conclusion that the petitioners were paupers. But it was held that the application was not maintainable inasmuch as prior to this, another misc. No. 158/64 was filed in the Court of the Additional 1st Munsiff at Mysore and it was posted on 21-8-65 and as the petitioner in that case and the Counsel were absent the petition was dismissed. The learned trial Judge therefore held that if a petition is dismissed for default of appearance, a second petition is not maintainable under Or. 33, R. 15 CPC. as the dismissal for default amounts to a refusal, under R. 7 (3) of Or. 33. It is the correctness of this view that is challenged in this revision petition. ( 3 ) THE relevant provisions of Or. 33 are, Rules, 5, 7 and 15 and the relevant portion of Rule 5 is given below: " 5. Rejection of application:the Court shall reject an application for permission to sue as a pauper (a) Where it is not framed and presented in the manner prescribed by Rules 2 and 3 and the applicant when required by the court to rectify the defect within a time to be fixed by the Court fails to do so, or (b) Where the applicant is not a pauper, or (c) Where he has, within two months next before the presentatation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or (d) Where his allegations do not show a cause of action, or (e) Where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject matter. " the provisions of Rule 7, viz. , (1), (2) and (3) run thus: "7. " the provisions of Rule 7, viz. , (1), (2) and (3) run thus: "7. Procedure at hearing: (1) On the day so fixed or as soon therefater as may be convenient, the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make a memorandum of the substance of their evidence. (2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided the applicant is, or is not subject to any of the prohibitions specified in Rule 5. (3) The Court shall then either allow or refuse to allow the applicant to sue as a pauper. " the provision of Rule 15 reads thus: "15. Refusal to allow applicant to sue as pauper to bar subsequent application of like nature: An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) ircurred by the State Government and by the opposite party in opposing his application for leave to sue as a pauper. " ( 4 ) THERE are two stages in an enquiry under Or. 33 CPC. , relating to an application praying for permission to sue as a pauper. After the application is presented, a Court is to examine the applicant regarding the merits of the claim. The Court may reject the application to sue as a pauper on any of the grounds stated under Rule 5 If, however, the Court sees no reason to reject the application on any of the grounds, it shall fix a day for proof of pauperism and for evidence which may be adduced to the contrary. The procedure of the hearing is regulated bv Rule 7. Sub-rule (1) of Rule 7 is about recording of evidence produced by the parties. The procedure of the hearing is regulated bv Rule 7. Sub-rule (1) of Rule 7 is about recording of evidence produced by the parties. Sub-rule (2) is about hearing of the arguments of the parties on the question whether, on the face of the application and of the evidence taken by the Court as provided, the applicant is or is not subject to any of the prohibitions contained in Rule 5. Sub-rule (3) states that the Court then shall either allow or refuse the application to sue as a pauper. ( 5 ) IT is clear from the provisions of Rules 5, and 7 that a distinction is drawn between an order passed under Rule 5 rejecting an application to sue as a pauper and an order passed under Rule 7 refusing the application to sue as a pauper. An order under Rule 5 is made before a statement is recorded. Rule 7 speaks of an order made after considering the entire evidence of the parties. The question therefore is as to whether an order passed dismissing the application for default of appearance, is an order falling within Or. 33, R 7 CPC. If the application falls under Or. 33, r. 7, then a fresh application is barred under Rule 15 In the entire provisions of Or. 33 there is no provision enabling the Court to dismiss an application for default of appearance of applicant. Further, there is a divergence of opinion on the question as to whether an order passed dismissing the application for default of appearance bars a fresh application. The High Court of Allahabad in Nimar Pandey v. Jagdish Pandey, AIR1941 All 166 has held that the dismissal for default of appearance cannot obviously amount to such a refusal and Or. 33, R. 15 only authorises the application of the principle of res judicata to an application to sue informa pauperis and prohibits the entertainment of a second application when the first has been dismissed on the merits and it does not contemplate that a summary order passed without enquiry or contest should be given the force of res judicata. The learned Judge of the Allahabad High Court has followed the judment of the Madras High Court reported in AIR. 1925 Mad. 986 and AIR. 1926 Mad. 875, and has declined to follow the view taken by the Calcuha High Court. The learned Judge of the Allahabad High Court has followed the judment of the Madras High Court reported in AIR. 1925 Mad. 986 and AIR. 1926 Mad. 875, and has declined to follow the view taken by the Calcuha High Court. The view taken by the Allahabad High Court also finds support in the judgment of the Nagpur High Court in Ganesh prasad v. Radheshyam Fateh Chand, AIR 1950 Nag. 82 wherein the principle enunciated by the Allahabad High Court has been followed. The learned Judge has stated that he has accepted the view taken by the High Courts of madras and Allahabad. The relevant head-note is given below: "order 33, Rule 15 bars a second application if there is an order refusing to allow the applicant to sue as a pauper on the previous occasion. The dismissal of the firsl application for default does not operate as a bar to the maintainability of the second application for pauperism. " ( 6 ) AS against this, the High Courts of Patna and Calcutta have taken a contrary view. In Radhika Prasad v Shyama Charan, AIR. 1966 Pat. 387 it has been held that Or. 33, R. 15 will applv even to a case where the applicant has failed to take proper steps, and what his Lordship has held is that what is necessary to be seen is, whether the application is dismissed for default after the enquiry has reached the stage of Rule 7. His Lordship, misra J. , took the view that if the proceeding had reached the stage of recording evidence, then Rule 7 is automatically attracted. It may be nrted that the learned Judge has dissented from the view taken by the other High Courts. The Calcutta High Court in Harendrakumar v C. B. Syndicate, AIR 1958 Cal 182 has also taken the view that the dismissal of the application for default amounts to an order under Rule 7 (3) and bars a fresh application. The learned Judge has dissented from the view taken by the Nagpur High Court and has preferred to follow the earlier view taken by the Calcutta Hihh Court. ( 7 ) IN the former High Court of Mysore this question did not come up directly for consideration But in the case in Subbamma v. Guddappa setty, 29 Mys. The learned Judge has dissented from the view taken by the Nagpur High Court and has preferred to follow the earlier view taken by the Calcutta Hihh Court. ( 7 ) IN the former High Court of Mysore this question did not come up directly for consideration But in the case in Subbamma v. Guddappa setty, 29 Mys. L. J. 82 it was held that where an application to sue in forma pauperis is withdrawn by the petitioner and consequently dismissed, a subsequent application of the like nature in respect of the same right to sue is barred under Or. 33, R. 15 CPC It is clear that so far as this case is concerned, it is clearly distinguishable ( 8 ) I am of the view that the provisions nf Or. 33, R. 15 are attracted only when there is an order refusing to allow an application of the applicant to sue as a pauper and such order is one which must have been made under sub-rule (3) of Rule 7. An order under sub-rule (3) of Rule 7 is made only when the evidence is recorded and the Court hears the argument. It is clear that it is only then the Court can either allow or refuse the application. An order dismissing an application for default does not amount to an order under sub-rule (3)of Rule 7 of Or. 33. ( 9 ) I am therefore of the view that the learned trial Judee was clearly in error in holding that the application is barred under Or. 33, R. 15 CPC. ( 10 ) FOR the aforesaid reasons, this revision petition is allowed, the order of the learned trial Judge is set aside. P. Misc. No. 10/65 is allowed. and the petitioners are permitted to file the suit as paupers. The learned judge will now register the suit and take further steps to dispose of the suit in accordance with law. No costs. --- *** --- .